CALABRO -v- THE STATE OF WESTERN AUSTRALIA [2024] WASCA 10 (2 February 2024)

The appellant's application in an appeal filed on 22 June 2022 to vacate the appeal hearing

1. On 28 April 2022, the appeal was listed for hearing on 18 July 2022.
2. On 22 June 2022, the appellant filed an application in an appeal to vacate the hearing date for the appeal. The application was supported by the appellant's affidavit sworn 22 June 2022. In the affidavit the appellant acknowledged that on 2 May 2022 he was informed that the appeal had been listed for hearing on 18 July 2022. The appellant deposed to various circumstances within the prison where he was being held which the appellant asserted had impeded his preparation for the appeal hearing. On 18 July 2022, this court dismissed the appellant's application. The court was satisfied that the circumstances alleged in the appellant's affidavit did not prevent him from adequately presenting his case on the listed hearing date.

The appellant's other applications in an appeal that were heard on 18 July 2022

1. The appellant filed two other applications in an appeal that were heard on 18 July 2022.
2. One application was made orally by the appellant and sought leave to adduce additional evidence in the appeal, namely an affidavit of Luisa Calabro sworn 17 May 2021 and a statutory declaration of Ms Calabro made 8 July 2021.
3. The other application was filed on 7 July 2022 and sought leave to adduce additional evidence in the appeal, namely an affidavit of Bonar Levison sworn 6 July 2022.
4. On 18 July 2022, counsel for the State objected to the admissibility of various parts of Ms Calabro's affidavit and statutory declaration.
5. On 18 July 2022, the court ruled that it would receive, on a provisional basis, the additional evidence sought to be relied upon by the appellant, and would rule in its reasons for judgment in the appeal whether and to what extent the additional evidence was admissible and leave to adduce the evidence should be granted.

The State's application in an appeal that was heard on 18 July 2022

1. On 18 July 2022, this court heard an application in an appeal filed by the State on 3 September 2021. The application sought leave to adduce additional evidence in the appeal, namely an affidavit of Mr Woodhouse sworn 31 August 2021.
2. On 18 July 2022, the court ruled that it would receive, on a provisional basis, the additional evidence sought to be relied upon by the State and would rule in its reasons for judgment in the appeal whether and to what extent the evidence was admissible and leave to adduce the evidence should be granted.

1. At the hearing of the appeal on 18 July 2022, the appellant informed the court that he proposed to cross‑examine Mr Woodhouse on various issues relating to ground 2 of the appeal. The court explained to the appellant that his questions had to be relevant to the grounds of appeal. The court also explained to the appellant that, to the extent he put particular propositions of fact to Mr Woodhouse in cross‑examination and those propositions were not accepted by Mr Woodhouse, there would be no evidence in support of those propositions because the appellant had not filed an application in the appeal for leave to adduce evidence from the appellant. The court also explained to the appellant that if he wanted to put his version of events before the court then he would have to make an oral application for leave to adduce evidence of his version by giving evidence in the witness box at the hearing on 18 July 2022. The court also explained to the appellant that if he sought to adopt that course then counsel for the State would be entitled to cross‑examine him.
2. It became apparent on 18 July 2022, following an exchange between the court and the appellant in relation to supplementary questions the appellant sought to ask Ms Calabro, that the appellant wanted to adduce evidence from Ms Calabro in support of his assertion that, after he had been charged with the murder of Mr Tran and remanded in custody in Hakea Prison, he had been diagnosed with 'bipolar and schizo‑bipolar'. The appellant said that Ms Calabro could give evidence as to her observations of his behaviour while he was remanded in custody and that her evidence would support ground 1. The court pointed out to the appellant that he had not sought leave to adduce expert medical evidence in the appeal from a psychiatrist, a clinical psychologist or even a medical practitioner with relevant general practice experience.
3. At the hearing on 18 July 2022, the appellant said that he wanted to amend his grounds of appeal to allege two additional grounds. First, that the trial judge misdirected the jury in relation to the meaning of the word 'wrongfully' in s 244(1) of the Code. Secondly, that a miscarriage of justice occurred at his trial because evidence was not adduced to the effect that, at the time he killed Mr Tran, he was of unsound mind.
4. On 18 July 2022, the court made these orders:

(a) By 4.00 pm on 8 August 2022, the appellant must file and serve any application for leave to amend his grounds of appeal by adding an additional ground which alleged that the trial judge misdirected the jury in relation to the meaning of the word 'wrongfully' in s 244(1) of the Code, together with the appellant's proposed written submissions in support of the additional ground.

(b) By 4.00 pm on 19 September 2022, the appellant must file and serve:

(i) any application for leave to amend his grounds of appeal by adding a further additional ground which alleged that a miscarriage of justice occurred at the trial because evidence was not adduced to the effect that, at the time of killing Mr Tran, the appellant was not criminally responsible for the killing on account of unsoundness of mind within s 27 of the Code; and

(ii) an affidavit in support of any application which annexed the written opinion of a psychiatrist as to whether, at the material time, the appellant was of unsound mind within s 27 of the Code.

1. On 18 July 2022, after making those orders, the court informed the parties that the court would proceed immediately to hear submissions on the four existing grounds of appeal and to hear evidence as necessary. The appeal proceeded on that basis. At the conclusion of the hearing on 18 July 2022 the court reserved its decision on the applications in an appeal for leave to adduce additional evidence in the appeal. The court also reserved its decision on grounds 1, 2, 3 and 4.

(a) The appellant filed an application in an appeal on 28 July 2022, pursuant to the order referred to at [25(a)] above, for leave to amend his grounds of appeal by adding a new ground 5. The appellant also filed written submissions on 28 July 2022 in support of the proposed new ground 5.

(b) The appellant filed an application in an appeal on 15 September 2022 which in substance sought an extension of the time specified in the order referred to at [25(b)] above.

(c) On 19 September 2022, the court ordered that the time for compliance with the order referred to at [25(b)] above be extended from 4.00 pm on 19 September 2022 to 4.00 pm on 3 November 2022.

(d) The appellant filed an application in an appeal on 20 October 2022 which in substance sought another extension of the time specified in the order referred to at [25(b)] above as extended by the court on 19 September 2022.

(e) The appellant filed another application in an appeal on 20 October 2022 which in substance sought an order directing the Superintendent of Acacia Prison 'to allow a special visit from [Dr Victoria Pascu, consultant forensic psychiatrist] to interview [the appellant] either face‑to‑face or via video for as long as she needs in order to make an assessment of [the appellant] for a [p]sychiatric report'.

(f) On 27 October 2022, the court ordered that the time for compliance with the order referred to at [25(b)] above be extended again to 4.00 pm on 18 January 2023.

(g) On 27 October 2022, the court ordered that the appellant's application in an appeal filed 20 October 2022 for, in substance, an order directed to the Superintendent of Acacia Prison be dismissed.

(h) The appellant filed an application in an appeal on 22 December 2022 which in substance sought leave to adduce additional evidence in the appeal from the appellant. In his affidavit sworn 21 December 2022 in support of the application, the appellant said that the purpose of the affidavit was 'to explain what [the appellant] heard about [Mr Tran's] reputation prior to [the appellant] meeting him' at 1.00 am on 4 July 2018 (that is, about four days before the appellant killed Mr Tran).

(i) The appellant filed another application in an appeal on 22 December 2022 which in substance sought leave to adduce additional evidence in the appeal concerning criminal charges against Mr Tran that were pending as at the date of his death, the bail conditions relating to those charges and witness statements in respect of those charges.

(j) On 30 December 2022, the court ordered that the appellant's applications in an appeal filed 22 December 2022 be referred to the resumed hearing of the appeal.

(k) The appellant filed an application in an appeal on 3 January 2023 which in substance sought leave to issue a witness summons to the Commissioner of Police.

(l) The appellant filed an application in an appeal on 4 January 2023 which in substance sought leave to adduce additional evidence in the appeal from the appellant. In his affidavit sworn 4 January 2023 in support of the application, the appellant said that the purpose of the affidavit was to explain 'why it was unreasonable [to expect him] to call the police prior to' killing Mr Tran.

(m) On 12 January 2023, Buss P ordered that the appellant's application in an appeal filed 3 January 2023 for leave to issue a witness summons to the Commissioner of Police be referred to a directions hearing on 8 February 2023 and that the appellant's application filed 4 January 2023 for leave to adduce additional evidence in the appeal be referred to the resumed hearing of the appeal.

(n) The appellant filed an application in an appeal on 18 January 2023 which in substance sought a number of orders directing the Superintendent of Acacia Prison to provide the appellant with various computer, internet and other facilities to assist him in preparing for the resumed hearing of the appeal.

(o) On 20 January 2023, Buss P made an order that by 4.00 pm on 31 January 2023 the appellant file and serve an affidavit which annexed a letter from Dr Pascu setting out details as to the current status of her report and when it would be completed.

(p) On 26 January 2023, the appellant filed an affidavit sworn by him on 25 January 2023 which explained Dr Pascu's progress in preparing her report.

(q) The appellant filed an application in an appeal on 2 February 2023 for 'a Certificate against Self‑Incrimination'.

(r) On 8 February 2023, Buss P and Mazza JA:

(i) made various programming orders to facilitate Dr Pascu's preparation of her report, including an order that the time for compliance with the order referred to at [25(b)] above be extended again to 4.00 pm on 13 March 2023; and

(ii) dismissed the appellant's applications in an appeal filed 3 January 2023, 18 January 2023 and 2 February 2023.

(s) The appellant filed an application in an appeal on 15 February 2023 for leave to issue a witness summons to the Commissioner of Police.

(t) On 20 February 2023, Buss P ordered that the appellant's application in an appeal filed 15 February 2023 for leave to issue a witness summons to the Commissioner of Police be referred to a directions hearing on 24 February 2023.

(u) The appellant filed an application in an appeal on 23 February 2023 for leave to issue another witness summons to the Commissioner of Police.

(v) On 23 February 2023, the Acting Court of Appeal Registrar ordered that the appellant's applications in an appeal filed 15 and 23 February 2023 for leave to issue witness summonses be heard at the directions hearing on 24 February 2023.

(w) On 24 February 2023, Buss P and Mazza JA ordered:

(i) as to the application in an appeal filed 15 February 2023, leave is granted to issue a witness summons directed to the Commissioner of Police to produce at 9.00 am on 31 March 2023 the video recordings referred to in paragraph 3 of the appellant's affidavit sworn 15 February 2023; and

(ii) as to the application in an appeal filed 23 February 2023, leave is granted to issue a witness summons directed to the Commissioner of Police to produce at 9.00 am on 31 March 2023 the audio recording referred to in paragraph 9 of the appellant's affidavit sworn 22 February 2023.

(x) On 27 March 2023, the appellant filed an application in an appeal for leave to amend his grounds of appeal by adding new grounds 6, 7 and 8; to rely on submissions exceeding 20 pages; and to amend his orders sought.

(y) On 27 March 2023, the appellant filed an application in an appeal for leave to adduce additional evidence, namely the psychiatric report of Dr Pascu dated 7 March 2023.

(z) On 27 March 2023, the appellant filed an application in an appeal for leave to adduce additional evidence, namely the report of Professor David Joyce dated 10 September 2019.

(aa) The appellant filed written submissions on 27 March 2023 in support of the proposed grounds 6, 7 and 8.

(bb) On 30 March 2023, Buss P ordered that the applications in an appeal filed on 27 March 2023 in relation to Dr Pascu and Professor Joyce be listed for hearing on 19 April 2023.

(cc) On 31 March 2023, a solicitor engaged by the Commissioner of Police appeared before Buss P and Mazza JA in answer to the witness summonses that had been issued to the Commissioner of Police. The Commissioner did not have any documents or recordings to produce in answer to the witness summonses.

(dd) The appellant filed an application in an appeal on 13 April 2023 for leave to file and serve additional submissions.

(ee) On 14 April 2023, the State filed written submissions in response to proposed grounds 6, 7 and 8.

The appellant's proposed additional grounds of appeal

1. As we have mentioned, the appellant sought leave to supplement his initial grounds of appeal by relying upon new grounds 5, 6, 7 and 8.
2. Proposed ground 5 alleges, in essence, that the trial judge misdirected the jury in relation to the meaning of the word 'wrongfully' in s 244(1) of the Code and that the misdirection involved an error of law and fact, and occasioned a miscarriage of justice.
3. Proposed ground 6 alleges, in essence, that inadmissible evidence, including recordings, was admitted at the trial and the admission of that evidence, including the recordings, involved an error of law and fact by the trial judge and occasioned a miscarriage of justice. Ground 6 comprises, in essence, five subgrounds.
4. Ground 6.1 alleges that two police interviews were wrongly admitted into evidence at the trial, contrary to s 106HB of the Evidence Act 1906 (WA), and that the admission of the interviews involved an error of law by the trial judge and occasioned a miscarriage of justice.
5. Ground 6.2 alleges that recordings of conversations between the appellant and visitors at Hakea Prison were wrongly admitted into evidence, contrary to s 106HB of the Evidence Act, and that the admission of the recordings involved an error of law by the trial judge and occasioned a miscarriage of justice.
6. Ground 6.3 substantially reproduces ground 6.2, but alleges that the recordings of the conversation were wrongly admitted into evidence, contrary to s 112 of the Evidence Act, and that '[d]ue to the [appellant's] mental impairment these recordings were extremely prejudicial [to the appellant] and completely out‑weighed all, if any, probative value to the prosecution'.
7. Ground 6.4 alleges that the trial judge erred by ruling that photograph 414, which depicted a cut to Mr Tran's neck, was admissible and should be received in evidence as Exhibit 41, in that the photograph was 'extremely prejudicial [to the appellant] and out‑weighed any probative value to the prosecution'.
8. Ground 6.5 alleges that the trial judge erred by deciding that a ruler should be admitted into evidence as Exhibit 42 in that the ruler was tendered by the State for the purpose of representing the length of the wound suffered by Mr Tran and the width of the knife used to inflict the wound and, in these circumstances, the ruler was 'prejudicial [to the appellant] as it was a false and misleading representation of the stab wound'.
9. Proposed ground 7 alleges, in essence, that the trial judge erred 'by forcing the appellant, when giving evidence, to answer repetitive questions'. Ground 7 also alleges that her Honour erred 'by allowing the prosecutor to continue to be repetitive and harassing to the appellant whilst the appellant was giving evidence'. Ground 7 also alleges that her Honour erred 'by not adequately directing or misdirecting the jury'. It is contended that her Honour's alleged errors occasioned a miscarriage of justice. Ground 7 comprises, in essence, four subgrounds.
10. Ground 7.1 alleges that the trial judge forced the appellant, when giving evidence, to answer repetitive questions; the appellant said at ts 1098 that he had already answered a question; the question was repetitive; nevertheless, her Honour told the appellant that he was to answer the question again; this prejudiced the appellant at the time; consequently, a miscarriage of justice occurred.
11. Ground 7.2 alleges that the trial judge allowed the prosecutor to be repetitive and harassing to the appellant while the appellant was giving evidence; her Honour allowed the prosecutor to be misleading, repetitive, unduly annoying and harassing; this was prejudicial to the appellant; consequently, a miscarriage of justice occurred.
12. Ground 7.3 alleges that the trial judge failed to direct the jury on the mental impairment or psychiatric diagnosis of the appellant; the appellant was mentally impaired and heavily medicated; this was prejudicial to the appellant; her Honour's failure to direct the jury appropriately occasioned a miscarriage of justice.
13. Ground 7.4 alleges that the trial judge failed to give an appropriate direction to the jury to cure 'the unsupported ... [alternative] version of events' advanced by the prosecutor in his cross‑examination and address to the jury; the prosecutor's alternative version of events was that '[Mr Tran] was on his knees facing the couch and had his neck cut from behind'; the prosecutor 'conceded' this version of events; her Honour failed to direct the jury on this concession; it was therefore open to the jury to adopt the alternative version of events that had been conceded by the prosecutor; the jury chose to rely on the alternative version of events in arriving at their verdict which was unreasonable and unsupported by the evidence; consequently, a miscarriage of justice occurred.
14. Ground 8 alleges, in essence, that the prosecutor's cross‑examination of the appellant and the prosecutor's address to the jury were 'misleading, unduly annoying, harassing, offensive and oppressive' and were calculated 'to elicit a prejudicial and unreasonable verdict by the jury that was unsupported by the evidence'. It is contended that the prosecutor's alleged conduct occasioned a miscarriage of justice.

The resumed hearing of the appeal on 19 April 2023

1. At the resumed hearing of the appeal on 19 April 2023, the appellant made oral submissions on, amongst other matters, the proposed additional grounds of appeal.
2. At the conclusion of the resumed hearing on 19 April 2023, the court made orders as follows:

(a) The court reserves judgment on the appellant's:

(i) application in an appeal dated 9 March 2023 to amend the grounds of appeal;

(ii) application in an appeal dated 14 March 2023 to adduce the evidence of Dr Pascu;

(iii) application in an appeal dated 14 March 2023 to adduce the evidence of Professor Joyce; and

(iv) application in an appeal filed 13 April 2023 for leave to file submissions.

(b) The court reserves judgment on the appellant's outstanding applications in an appeal including his applications filed 28 July 2022, 22 December 2022, 22 December 2022 and 4 January 2023.

(c) The court reserves judgment in the appeal.

1. It was common cause at the trial (and on the appeal) that the appellant had killed Mr Tran.
2. The critical issue at the trial was whether the jury were satisfied beyond reasonable doubt that the appellant's actions in killing Mr Tran were unlawful.

1. The State's case at the trial was, in summary, as follows.
2. At about 8.45 am on Sunday, 8 July 2018, Mr Tran arrived at the appellant's house in Balga.
3. At about 3.00 pm on that day police found Mr Tran's body at the appellant's house. Mr Tran had been tied up, beaten and stabbed. His throat had been cut.
4. When Mr Tran died he was aged 29 and the appellant was aged 39.
5. The appellant had been living at the Balga house for a few months before Mr Tran's death. Usually the appellant lived alone. However, from time to time people would stay at the appellant's home.
6. A number of people who had interacted with Mr Tran or the appellant in the days preceding Mr Tran's death were called as State witnesses at the trial. Those witnesses gave evidence to the effect that Mr Tran and the appellant knew each other; Mr Tran had visited the appellant's house in the days preceding his death; and on the day before Mr Tran's death the appellant believed that his house had been burgled and the appellant was attempting to find those responsible for the burglary.
7. On the night before his death Mr Tran was affected by drugs, distressed and at times aggressive. On the night before his death Mr Tran had been assaulted. He stayed that night at Cindy Winjen's (also known as Cindy Cross) house in Balga.
8. Ms Winjen gave evidence that on the night of Saturday, 7 July 2018, Mr Tran arrived at her house. He was distressed and said that he had been stabbed. Mr Tran removed his clothes and showed his injuries to Ms Winjen and Shaun Smith, who also lived at Ms Winjen's house. Ms Winjen and Mr Smith saw that Mr Tran had a number of small cuts to his arm, a cut to his calf and a cut to his little finger. Mr Smith cleaned Mr Tran's injuries and applied a makeshift bandage to his calf to stop the bleeding and put a band‑aid on his finger.
9. Mr Tran stayed at Ms Winjen's house on the Saturday night. Alisa Oldham who was, at the time, training to be a nurse and who knew Mr Tran was contacted about him. She arrived at Ms Winjen's house sometime after 8.15 am on Sunday morning, 8 July 2018. Mr Tran declined Ms Oldham's offer to check his injuries. The only injuries Ms Oldham noticed were a cut to Mr Tran's little finger and a small cut to his calf. Mr Tran told Ms Oldham that he wanted to visit the appellant's house. Ms Oldham drove Mr Tran to that address.
10. When she arrived at the appellant's house, Ms Oldham saw that the wooden front door was open, but the flyscreen door was closed. As Mr Tran alighted from Ms Oldham's vehicle, the wooden front door was closed by someone who was in the house. Mr Tran opened the flyscreen door and attempted unsuccessfully to open the wooden door with his shoulder. Shortly after, the wooden door was opened by someone who was inside the house. Ms Oldham noticed the appellant standing near the wooden door. She then saw Mr Tran punch the appellant to the jaw and Mr Tran walk into the house.
11. Ms Oldham collected Mr Tran's stick and backpack from her vehicle and took them inside the house. Mr Tran and the appellant were speaking to each other in the house. There were a number of other people in the house.
12. Mr Tran said that he had been stabbed. He told the appellant that he needed a telephone, some drugs and the car which was parked outside the house. The appellant told Mr Tran that he would get him what he wanted, but he would have to pay for what Mr Tran had done to him as Mr Tran entered the house. Ms Oldham gave Mr Tran his stick and backpack. She then departed.
13. Two other people who had been at the appellant's house, Dean Jacobs and Tania Hill, left the house shortly after Mr Tran arrived. When they left the only people remaining in the house were the appellant and Mr Tran.
14. There were no eyewitnesses as to what happened between the appellant and Mr Tran when they were alone in the appellant's house.
15. The State's case against the appellant was based on evidence from a number of sources. Those sources included:

(a) evidence about Mr Tran's character, criminal record and propensity for violence;

(b) evidence about the relationship between the appellant and Mr Tran generally;

(c) evidence about the behaviour of each of the appellant and Mr Tran on 7 and 8 July 2018 and their interactions;

(d) the appellant's electronically recorded interviews with police;

(e) electronically recorded telephone calls and visits involving the appellant while he was remanded in custody; and

(f) evidence about the circumstances of Mr Tran's death and the scene at the appellant's house, including evidence of Mr Tran's cause of death and injuries and toxicology, and blood pattern evidence and DNA evidence.

1. The appellant's case at the trial was in essence that Mr Tran had a reputation for violence and that he had been violent towards the appellant on 8 July 2018 and during the four day period preceding that date.
2. The appellant maintained that Mr Tran was the aggressor and had initiated the incident between them on 8 July 2018 that led to Mr Tran's death.
3. The appellant's primary case was that his actions were necessary to prevent Mr Tran from committing an offence in his dwelling. The appellant relied upon the defence against home invasion in s 244 of the Code and upon the defence of self‑defence in s 248 of the Code.
4. At the commencement of the trial the appellant made ten formal admissions pursuant to s 32 of the Evidence Act. During his opening statement to the jury, counsel for the appellant outlined the admissions and explained the relevance of each admission to the critical issue in the case (namely whether the jury were satisfied beyond reasonable doubt that the appellant's actions in killing Mr Tran were unlawful), as follows:

(a) Mr Tran died on 8 July 2018 at the appellant's house in Balga.

(b) Mr Tran died as a result of injuries caused to him by the appellant at that address.

(c) No other person was involved in causing Mr Tran's death.

(d) At about 12.00 noon on 8 July 2018 the appellant attended the home of his former partner in Balga and spoke with his daughter, S (who was born in 2007), and his son, T (who was born in 2005).

(e) The appellant told S and T that he loved them and he hugged them.

(f) S and T observed blood on the appellant's face. T also observed blood on the appellant's knee near a tear in his shorts.

(g) The appellant was wearing camouflage shorts and a jacket with a hood.

(h) The appellant told S that a group called the 'KGB' was there to protect them.

(i) The appellant appeared to S to be stressed and worried.

(j) When the appellant left the home of his former partner in Balga all of the doors to the house were locked and arrangements were made for the children to go to their grandmother's house.

The appellant's electronic record of interview dated 8 July 2018

1. The appellant participated in an electronically recorded interview with Detective Senior Constable Carbone and Detective Senior Constable Dorrington at Mirrabooka Police Station on 8 July 2018 at 10.23 pm. The State tendered the transcript of the electronic record of interview (EROI) as Exhibit 28.2 at the trial.
2. During the EROI the appellant provided the following information:

(a) The appellant's full name is Dominic Calabro, born in 1979, of 120 Balga Avenue in Balga. The appellant completed year twelve in school (EROI ts 2).

(b) The appellant was arrested at around 3.35 pm on 8 July 2018 on suspicion of murder and was taken to Mirrabooka Police Station for questioning (EROI ts 3).

(c) Nobody else was involved in the 'events' that occurred at the appellant's house on 8 July 2018. After the 'events', the appellant left his house and went to Mirrabooka Police Station to hand himself in. The appellant spoke with a sergeant and requested that he write down what the appellant was going to tell him. The sergeant refused to do this and advised the appellant he should leave if he was not going to tell him what was wrong. The appellant decided to leave after unsuccessfully pleading with the sergeant to agree to write down the information (EROI ts 6, 8 ‑ 9).

(d) The appellant then walked to a phone box outside McDonald's Mirrabooka and called the police. The appellant informed the police that there was a body in his living room and that he would wait at the McDonald's Mirrabooka for police to attend to him (EROI ts 7).

(e) The appellant waited at McDonald's Mirrabooka and fell asleep. He awoke to four officers who took him into custody. The appellant was placed into the police car approximately 15 to 30 minutes later and informed that he was under arrest for suspicion of murder (EROI ts 7).

(f) Prior to this, the appellant had seen two police officers driving a police car whilst he was walking and had requested that they take him to the police station. The police officers advised that they could not take him (EROI ts 10 ‑ 12).

(g) The appellant told Detective Senior Constable Carbone and Detective Senior Constable Dorrington that he wished to speak with them about the events that occurred at his house earlier in the day 'off camera' before discussing them 'on camera'. The appellant wished to do this in order to provide the officers with 'context'. The officers advised the appellant that this is not how police interviews usually operate (EROI 12 ‑ 14).

(h) The officers suspended the interview at 10.45 pm to discuss how to proceed with the appellant's request. The interview recommenced at 11.38 pm (EROI ts 17). The officers advised the appellant that they would be able to have a discussion with the appellant off camera but that they would not be asking the appellant any questions during this discussion (EROI ts 18 ‑ 19). The officers suspended the interview at 11.42 pm and resumed the interview at 12.05 am after listening to the appellant discuss what he wished to speak about off camera (EROI ts 21).

(i) The appellant told the officers that Mr Tran had 'rocked up' at the appellant's house 'four mornings ago' and punched the appellant. Mr Tran then threatened and choked the appellant (EROI ts 21).

(j) The appellant 'couldn't allow it to continue'. There were 'very real' threats on the appellant's life and on the lives of other people. The appellant felt as though Mr Tran had put him in a position where he had no choice. Whilst Mr Tran told the appellant that he would forgive the appellant if he untied him, the appellant did not believe him. The appellant had to 'make the choice' (EROI ts 22).

(k) The appellant first met Mr Tran four days prior to Mr Tran's death (EROI ts 23). Mr Tran was a very controlling individual. At approximately 1.00 am on Thursday 5 July 2018, Mr Tran arrived at the appellant's house (EROI ts 24). Mr Tran was 'running around just trying to play gangster' and was threatening people. The appellant felt that either himself or another individual was Mr Tran's 'target'. It was as though the appellant was 'being kidnapped' (EROI ts 26).

(l) Mr Tran was at the appellant's house because he required medical assistance for various stab wounds on his body. Mr Tran also said that he had been robbed. The appellant believed, however, that what had actually happened is that the person (who the appellant would not name) whom Mr Tran had threatened the night before had 'had enough' and 'had people come in to try to protect her' (EROI ts 29 ‑ 30). Mr Tran told the appellant that he wanted drugs and proceeded to get 'more violent' (EROI ts 30).

(m) Mr Tran hit the appellant again and choked the appellant. Mr Tran began to pick up knives (EROI ts 32). The appellant tied up Mr Tran. The appellant could not let Mr Tran go at this point because he felt that Mr Tran wanted to kill him (EROI ts 33).

(n) When the appellant had Mr Tran tied up in his house, he had not yet realised that he needed to kill Mr Tran (EROI ts 36). It 'all [came] to an end' when Mr Tran told the appellant that he was going to 'rush' him (EROI ts 37). Mr Tran told the appellant that he was going to leave and then return to the house and it would then be 'over' for the appellant. Mr Tran then tried to kick the appellant. Mr Tran kept 'pushing' so the appellant 'put him out' (EROI ts 38).

(o) The appellant refused to give explicit details whilst the interview was being recorded (EROI ts 39).

(p) The appellant explained that Mr Tran displayed 'gas‑lighting, narcissistic, psychotic behaviour' (EROI ts 26). The appellant described 'gas-lighting' as a psychological procedure used by 'a psychopath or a narcissistic individual ... to make [others] lose their mind or reality on situations' (EROI ts 41 ‑ 42). The appellant stated that Mr Tran's behaviour leading up to the events that took place at the appellant's house on 8 July 2018 was very controlled and calculated (EROI ts 42).

(q) The interview was terminated at 12.39 am on 9 July 2018 (EROI ts 44).

The appellant's electronically recorded conversations with friends and family members while in custody awaiting trial

1. The appellant engaged in numerous electronically recorded conversations with friends and family members while he was in custody awaiting trial. The State tendered audio recordings and transcripts of six of those conversations at the trial.
2. During the conversations the appellant made the following statements:

(a) 13 July 2018 prison visit (Exhibit 31): The appellant told his visitors that he had spoken to police, stating 'I've said plenty... But I have had to redirect everything into way [sic] that, um, nobody else gets implicated - - - unfortunately.

I haven't actually given the specifics of what's happened in the house ... But when everything occurred - - - I'm the only one there. And I've locked the door. And I've left. So, nobody's seen what's happened in between that. So, I'm the only one that knows what's happened to that body'.

(b) 3 August 2018 prison visit (Exhibit 32): The appellant told a male friend that he had not told the homicide officers 'the part in the middle' of what had happened when he killed Mr Tran.

(c) 8 September 2018 telephone call (Exhibit 33): During the second telephone call between the appellant and his sister on 8 September 2018, the appellant told Ms Calabro to get someone to throw out the shrine erected for Mr Tran at 120 Balga Avenue, Balga, 'or just even a photo, of, you know, this is where the dog lies'. The appellant also told his sister 'You know, you know the story right? ... You know there's only one sort that can push me that far'.

(d) 8 September 2018 telephone call (Exhibit 34): During the first recorded telephone call between the appellant and his sister, Luisa Calabro, on 8 September 2018, the appellant said: 'Well just remember this mate, I haven't done my police interview of what occurred at the house yet ... I can make up any story I like'. Ms Calabro responded, laughing, that the appellant should remember to tell the police that he has a history of blacking out.

(e) 9 September 2018 telephone call (Exhibit 35): During the telephone call between the appellant and his sister on 9 September 2018, the appellant described killing Mr Tran as 'taking out the trash'. The appellant instructed Ms Calabro to take a photograph of the shrine erected for Mr Tran and alter it by putting 'that red thing with a cross through it? ... the stop smoking symbol? So, you put one of those over it and say, "About time" or "Abort"'. The appellant's sister commented that 'It [Mr Tran's blood] was everywhere, and now I keep - every time I blink I see his face now and it's driving me insane, I can't sleep at night.'. The appellant replied: 'Oh, true? ... I wish I could say the same, but not really'.

(f) 21 September 2018 prison visit (Exhibit 36): The appellant made several statements to his visitors on 21 September 2019 which, on the State's case, demonstrated his intent to kill Mr Tran and negatived the defence case that the appellant acted lawfully pursuant to s 244 of the Code: 'You know to me he looked like he was just asleep. I had to make sure he wasn't coming back'.

'This guy's a shit cunt. He rolled up on me. Everybody knows he's a stand over, you know. I've only got the one thing working against me. The fact that I killed him and left the body in such disarray'.

'Come on Louise ... You know, you know me mate ... You know I can't stop once I've started. ... Well he got, he didn't even get everything that he, should have happened to him'.

When asked by one of his visitors: 'I wonder how long you're going to be in here for and what ---', the appellant replied: 'Murder, murder's about 17 years'.

1. The appellant elected to give evidence at the trial. The appellant's evidence was to the effect that he knew Mr Tran had a reputation for violence and that Mr Tran had been violent towards him on 8 July 2018 and in the few days before his death. The appellant gave evidence that Mr Tran had told him of numerous violent acts Mr Tran had perpetrated against others as, in effect, a 'standover man', including tying up, torturing and burning victims. The appellant said that Mr Tran had told him that he had killed people. The appellant insisted that he and/or a female friend had been targeted by Mr Tran and that Mr Tran was planning to kill one or both of them.
2. The appellant's evidence‑in‑chief was to the following effect:

(a) Prior to his arrest on 8 July 2018, the appellant resided at 120 Balga Avenue in Balga (ts 931). The appellant has two children from a prior de facto relationship (ts 932).

(b) The appellant first began using cannabis when he was approximately 32 years old and methylamphetamine when he was approximately 33 years old. At the time of Mr Tran's death, the appellant was smoking methylamphetamine via a glass pipe almost daily. The appellant was not smoking cannabis regularly (ts 932 - 933).

(c) The appellant was also selling drugs from his home in order to support his drug use habits (ts 933). The appellant was primarily selling methylamphetamine and 'a little bit' of cocaine (ts 934).

(d) On the evening of 4 July 2018, the appellant was at home. At around 1.00 am on 5 July 2018, a man and a woman knocked on the appellant's door. The appellant recognised the woman, Shannon Hill, from 'the drug scene'. The appellant did not recognise the man at the time, but later came to realise that he was Mr Tran (ts 934).

(e) The appellant believed that Shannon Hill and Mr Tran were looking for drugs and he let them inside (ts 934). Shannon Hill stayed in the appellant's living room. Mr Tran walked through various rooms in the house (ts 935). The appellant asked Mr Tran what he was doing. Mr Tran responded by asking the appellant if he knew who he (Mr Tran) was. The appellant guessed out aloud the words 'Andrew Tran' based on previously seeing Mr Tran on a video call, the man's Asian appearance and the way that he was behaving. The appellant knew that Mr Tran had a reputation for 'doing as he pleased' (ts 936).

(f) Mr Tran asked the appellant how the appellant knew who he was. The appellant told Mr Tran that he knew him because of his reputation. The appellant avoided answering any further questions by Mr Tran about what the appellant knew of him and his reputation (ts 936 - 937).

(g) Mr Tran asked the appellant for the names of any people the appellant knew who might be common to himself and Mr Tran. The appellant provided the names of Daniel Ogilvie, Jeremy Ogilvie and Gary Ogilvie. Jeremy Ogilvie was deceased at the time. The three men are brothers and were very prominent names in the 'KGB' area (Koondoola, Girrawheen and Balga) and the 'drug world' (ts 937). Upon hearing these names, Mr Tran became 'paranoid' and 'very angry'. Mr Tran put his arms around the appellant's neck and choked the appellant for around 30 seconds (ts 938).

(h) Mr Tran then demanded that the appellant give him drugs. The appellant provided Mr Tran with approximately 14 grams of cocaine and told Mr Tran that the price of the drugs was $5,000. The appellant did not receive payment from Mr Tran for the drugs nor did the appellant subsequently follow up with Mr Tran regarding payment (ts 939).

(i) Mr Tran gave half of the cocaine to Shannon Hill, who left the house. Mr Tran asked the appellant if he could use the appellant's house as a 'base'. The appellant asked Mr Tran what he would receive in return. Mr Tran told the appellant that if he gave Mr Tran a name, he would 'take care of them'. The appellant took this to mean that Mr Tran would have somebody killed for him. The appellant told Mr Tran that he did not need any favours of that kind (ts 940).

(j) The appellant suggested that Mr Tran could offer him money instead, to which Mr Tran offered another $5,000 in addition to the $5,000 for the cocaine. The appellant did not receive either of the two $5,000 payments from Mr Tran (ts 941).

(k) Shortly afterwards, at around 2.00 am, Mr Tran demanded that the appellant leave the house with him. The appellant and Mr Tran left the appellant's house in a 300C Chrysler driven by Mr Tran and drove to a house in Mirrabooka to see a man named 'Farris'. Mr Tran demanded that the appellant give Mr Tran his mobile phone. The appellant handed over his phone (ts 941 ‑ 942).

(l) A woman named Julie and a man named Wade Ninyette were also present at Farris's house (ts 942). The appellant had never met Julie, but he knew her ex-partner. The appellant did not know Mr Ninyette (ts 942 ‑ 943).

(m) The appellant sat at the dining table and smoked some methylamphetamine (ts 943). Mr Tran was acting 'erratic'. Mr Tran circled around the table, put his elbow into the back of the appellant's head, and poked the appellant with a knife (ts 944).

(n) Later on, Shannon Hill, Corina Garlett, Brendan Garlett and Kieran Garlett arrived at the house (ts 945 ‑ 946). Brendan and Kieran Garlett are brothers. Shannon Hill and Ms Garlett wanted the appellant to leave with them, but the appellant did not leave. The appellant asked Shannon Hill to find his mobile phone and to 'hold onto it', which she did (ts 946).

(o) The appellant, Mr Tran and Mr Ninyette left the house after approximately one or two hours. Mr Ninyette alighted from the vehicle in Mirrabooka (ts 947). The appellant and Mr Tran continued driving until they arrived at a house in Mirrabooka belonging to a woman named Sandy. They arrived at Sandy's house at about 3.00 am (ts 951). The appellant, Mr Tran and Sandy smoked some cannabis. Mr Tran continued to threaten the appellant and told the appellant that he was 'going to go for a ride in the boot' and other words to that effect (ts 952).

(p) The appellant and Mr Tran returned to the appellant's house. It was still dark. Several individuals were present at the house, including Shannon Hill and Ms Garlett, as well as Salvatore Ramondi (ts 953). While everyone was in the living room, the appellant had a nap on the couch (ts 954). When he woke, they had left his house (ts 955).

(q) At approximately 2.00 pm on 5 July 2018, Mr Tran arrived at the appellant's house. Mr Tran told the appellant that he was upset and angry because he had missed his reporting requirement at the police station. The appellant suggested that Mr Tran obtain a medical certificate to explain his absence (ts 955). At Mr Tran's request, the appellant organised a medical appointment for Mr Tran at the Mirrabooka Medical Centre for around 4.00 pm that day (ts 955 ‑ 956).

(r) Two male individuals passed by the appellant's house in a car. Mr Tran recognised the occupants of the car and demanded that they drive him and the appellant to the medical centre (ts 956). Mr Tran obtained the medical certificate (ts 957).

(s) The appellant and Mr Tran then met with Shannon Hill and Ms Garlett. The four called a taxi which took them to Alisa Oldham's house. The group sat in Ms Oldham's courtyard from approximately 4.30 pm to 6.30 pm. The appellant then got into a taxi with Shannon Hill and Ms Garlett and was dropped off at his home while Shannon Hill and Ms Garlett continued on (ts 957). Mr Tran stayed at Ms Oldham's house (ts 958).

(t) On 6 July 2018, Mr Tran arrived at the appellant's house and requested that the appellant travel with him to his hearing at the Joondalup Courthouse. At the hearing Mr Tran's bail was extended. The appellant travelled home alone via public transport (ts 958).

(u) When he returned home the appellant began to pack up his belongings. The appellant was planning to leave his house because he had not been paying rent and was anticipating an eviction notice. At around 4.30 pm on 6 July 2018, Mr Tran again appeared at the appellant's house. Mr Tran was angry because he had arrived with a different woman named Sandy who had 'escaped him'. Mr Tran requested that the appellant chase after her (ts 959). The appellant searched about 200 to 300 m along the street but could not see or hear anyone. When the appellant returned to his house, Mr Tran was screaming into his phone, 'You're dead' (ts 960).

(v) On the evening of 6 July 2018, the appellant and Mr Tran went to Julie's apartment at 131 Adelaide Terrace, Perth (ts 961). Also at the apartment were Michelle 'Cookie' Williams, her son, Gank Penny, and two men whom the appellant did not know. The appellant and the others smoked methylamphetamine with a glass pipe. Mr Tran was making verbal threats toward Julie (ts 962).

(w) At some point, Mr Tran left the apartment. The appellant had a conversation with Julie about his ex‑partner, Ariana. Following that conversation, the appellant made a phone call to Ariana to check on her safety (ts 963).

(x) Mr Tran returned to the apartment after about an hour. Mr Tran was upset because he had been unable to obtain drugs. Mr Tran told the appellant that he wanted drugs on that night in particular because he was worried that he would be taken into custody at his court hearing the next day. If he was taken into custody, Mr Tran wanted to traffic the drugs into prison (ts 964).

(y) The appellant, Mr Tran and Julie drove around for several hours in Julie's vehicle in an attempt to obtain drugs, but were unsuccessful. They returned to Julie's apartment at around 4.00 am or 5.00 am (ts 965). Mr Tran left the apartment again in an attempt to find drugs. He was gone for about an hour and this time was successful. Mr Tran requested that the appellant go to a convenience store to purchase balloons. Mr Tran intended to place the drugs he had obtained inside the balloons. The appellant went to purchase balloons (ts 966).

(z) Mr Tran became violent and punched the appellant several times in the face and choked him (ts 967). Mr Tran also acted aggressively towards Julie, who called the 000 emergency number (ts 968). Julie terminated the phone call when Mr Tran told her that he would throw her off the balcony if she continued the call. A 000 operator called Julie back not long after. Julie told the operator that everything was fine (ts 969).

(aa) Later in the day, the appellant and Julie accompanied Mr Tran to his appearance at the Perth Courthouse in Northbridge (ts 969 ‑ 970). Mr Tran sent Julie inside to enquire about his appearance. While the appellant and Mr Tran waited in the car, Mr Tran told the appellant about the ways he had previously tortured, killed and burned people (ts 970). Julie returned to the car with two police officers who took Mr Tran into custody. After waiting for about 20 to 30 minutes, the appellant asked Julie to drive him home. Julie dropped the appellant at his home at around 9.30 am on 7 July 2018 (ts 971).

(bb) When he arrived home, the appellant decided to go and search for his car. The appellant had lent his car (a Mitsubishi Magna) to Gary Ogilvie, who had not returned the vehicle (ts 971 ‑ 972). The appellant had reported his car as stolen to the police on previous occasions when he had lent his car and it had not been returned. The appellant decided to walk to the house of a man named Shannon. The appellant's car was at Shannon's house, but Gary Ogilvie was not (ts 972).

(cc) The appellant drove his car to the house of a person named Sunshine McGuckin. Also at the house was a man named Dean Jacobs, a woman named Jessica Hill (the daughter of Tania Hill) and a man whom the appellant did not recognise (ts 973). The appellant spent several hours at Ms McGuckin's house. The appellant, Mr Jacobs and Jessica Hill travelled to Tania Hill's house at about 6.00 pm (ts 974 ‑ 975).

(dd) The appellant received a phone call from Ariana while he was at Tania Hill's house. Ariana told the appellant that when she was at the casino the night before, a man named Tony Foti had told her that Mr Tran was 'looking for her' and 'wanted to kill her' (ts 975 - 976).

(ee) At around 1.00 am, the appellant, Mr Jacobs and Tania Hill went for a 'night ride' in the appellant's vehicle. They arrived at the appellant's house in the early hours of 8 July 2018 (ts 977).

(ff) The appellant woke up at around 9.00 am on 8 July 2018. Tania Hill was shaking him and saying that Mr Tran was at the door. The appellant let Mr Tran into the house. Mr Tran punched the appellant on his chin (ts 978). Mr Tran accused the appellant of slamming the door on him. Mr Tran pushed the appellant aside and walked through the house. Mr Tran told the appellant that he had been stabbed, and that he wanted first aid, drugs, money and a car. Mr Tran wanted to 'retaliate' against the people who had stabbed him (ts 979 ‑ 980).

(gg) The appellant wrote down some instructions and gave them to Tania Hill. The appellant's intention was to make it seem as though he was sending Tania Hill and Mr Jacobs away from the house, in order to get them away from Mr Tran (ts 981).

(hh) The appellant did not ask Mr Tran to leave his house. The appellant was scared about the potentially violent consequences that he may have suffered if he asked Mr Tran to leave (ts 986).

(ii) Mr Tran became angry with the appellant and choked him for about 30 seconds. The appellant told Mr Tran that 'that was enough' (ts 988). Daniel Ogilvie and a man named William Wright arrived at the house and began to shout at Mr Tran for allegedly robbing a single mother. About 10 minutes later, two individuals named Alan Brown and Rikeesha Drayton also arrived at the house (ts 989).

(jj) Daniel Ogilvie was angry with Mr Tran for punching the appellant and 'disrespecting' him in 'his own house'. Mr Tran was sitting on the appellant's three-seater couch while Daniel Ogilvie and Mr Wright were shouting at him (ts 990). Mr Wright was holding a large pole. Mr Brown and Ms Drayton were sitting on two single couches in the living room. The appellant was standing (ts 991 - 992).

(kk) Mr Wright instructed Mr Brown to collect electrical tape or gaffer tape from the utility vehicle parked outside the appellant's house. Mr Brown returned with two rolls of tape. The appellant began to bind Mr Tran's hands and wrists together with grey electrical tape (ts 992). The appellant wanted to 'show [Mr Tran] what it was like for his victims when he did it, and to keep [Mr Tran] under control'. The appellant smacked Mr Tran on the right side of his face with a tow hook (ts 993). The appellant fetched some ice for Mr Tran to calm the swelling on his face (ts 994). The appellant bound Mr Tran's mouth with the electrical tape. The appellant struck Mr Tran several more times with the tow hook (ts 995). Mr Tran managed to pull the tape from his mouth and the appellant responded by binding his ankles with the black tape (ts 996).

(ll) The appellant asked the others in the house to leave in order to 'de‑escalate the situation'. When the others left the appellant's house, Mr Tran was still conscious (ts 998). Mr Tran started making threats towards the appellant. The appellant did not intend to kill Mr Tran at this point (ts 999).

(mm) The appellant left the room and grabbed a paint scraper, which he described as a long metal pole (ts 999). When the appellant returned to the lounge room, Mr Tran had unbound himself and was running towards the appellant. The appellant struck Mr Tran with the paint scraper three times (ts 1000). The strikes were to Mr Tran's leg, arm and the left side of his face and were of significant force. Mr Tran became unconscious. The appellant could hear that Mr Tran was still breathing (ts 1001).

(nn) The appellant knew that he now had 'a big problem on [his] hands' (ts 1002). The appellant decided that he was going to stab Mr Tran. The appellant collected a knife from the kitchen and stabbed Mr Tran in the shoulder (ts 1003). The appellant felt that he had no choice and that he was not going to let Mr Tran 'come back'. The appellant proceeded to stab Mr Tran in the neck, where he knew a carotid artery would be. The appellant understood that if he stabbed Mr Tran in the carotid artery, Mr Tran would die (ts 1004).

(oo) The appellant continued to stab Mr Tran repeatedly. The appellant stabbed Mr Tran in his shoulder area, his neck area, the front of his throat, his chest, his arms, his thighs and his wrists (ts 1005). The appellant felt as though he was a 'passenger' to the stabbing and he was not in control. Mr Tran looked as though he was asleep at this point. Mr Tran did not look like he was dead (ts 1006).

(pp) The appellant collected another knife from the kitchen. It was a black handled knife with a slimmer blade (ts 1006). The appellant attempted to lift Mr Tran but he was too heavy. Mr Tran fell off the couch onto the floor face down. The appellant proceeded to stab Mr Tran in the back several times in order to 'make sure that he was dead' (ts 1007). The appellant recalled stabbing Mr Tran once more, in the side of his stomach. The appellant then decided that he would hand himself in to the police (ts 1008).

(qq) The appellant locked the front door and left his house. The appellant walked to the house of a man named Chuck or Charles to inform him that he had killed Mr Tran. The man wanted methylamphetamine from the appellant. The man's wife 'kicked [the appellant] out' of the house (ts 1010).

(rr) The appellant then walked to the house where his children lived with their mother, Kylie Semple. The appellant told both his son and his daughter that he loved them (ts 1011). The appellant spoke to Kylie briefly. The appellant obtained a lift from Kylie's partner, Jason, who dropped the appellant in Mirrabooka. The appellant then walked to Shannon's house. Daniel Ogilvie, Mr Wright and Gary Ogilvie were present. The appellant told them that he had killed Mr Tran (ts 1012).

(ss) The appellant left Shannon's house and flagged down a passing police car (ts 1013). The police officer driving the car refused to give the appellant a lift to the police station (ts 1014). The appellant then walked to Mirrabooka Police Station, which took him about 30 minutes (ts 1015).

(tt) The appellant spoke with an officer at Mirrabooka Police Station. The appellant did not provide the police officer with details of what had happened because the police officer did not agree to write down what the appellant was going to tell him. The appellant left the police station (ts 1017).

(uu) The appellant then walked to a telephone box close to the McDonald's Mirrabooka and dialled 000 (ts 1018). The appellant told the 000 operator that there was a body on the floor of his lounge room and that he was going to wait at the McDonald's Mirrabooka. The appellant requested a free meal at the McDonald's, which he received. The appellant sat down to eat and took off his jacket, sneakers and socks in order to 'preserve the evidence' (ts 1019). The appellant fell asleep at the table and was awoken by four police officers (ts 1020). The appellant was cautioned and taken into custody (ts 1021).

1. During cross‑examination, the appellant gave the following evidence:

(a) The appellant tortured and killed Mr Tran (ts 1024). The appellant had only known Mr Tran for four days. The appellant agreed that he perhaps could have said 'no' to travelling around with Mr Tran, but he wanted to 'see what [Mr Tran was] about' (ts 1025).

(b) The appellant understood that allowing Mr Tran to use his house as a 'base' might involve something where the appellant had to take a risk (ts 1026).

(c) The appellant was given $5,000 worth of cocaine to sell on behalf of his supplier, who goes by the name of 'Mike'. The appellant would receive a profit margin on the sale of the cocaine which he would use to purchase his own methylamphetamine (ts 1030 ‑ 1031). While the appellant had taken a little bit of methylamphetamine on the morning of Mr Tran's death, it 'didn't have [any] effect whatsoever' on him (ts 1047).

(d) The appellant feared for his life and made conscious decisions which were drastic (ts 1035). The appellant felt victimised by Mr Tran (ts 1040). The appellant denied that his primary motivation was revenge. The appellant accepted, however, that he was intending to put a stop to Mr Tran's allegedly violent behaviour towards other people (ts 1089).

(e) The appellant accepted that he possibly could have called the police and told them that he had a home invader tied up in his house (ts 1090).

(f) When the appellant told his sister after his arrest that he had not done his police interview yet, so he could 'make up any story [he] like[d]', he meant this in a 'joking context' (ts 1095).

(g) The appellant believed that it was necessary to kill Mr Tran. The appellant believed that if he had untied Mr Tran, things 'could have gone south very quickly' (ts 1098).

1. During re‑examination, the appellant clarified that he did not ask Mr Tran to leave his house because he was worried that this would 'set [him] off' and result in Mr Tran becoming 'more violent' (ts 1105).

The appellant did not adduce any other evidence at the trial

1. The appellant did not adduce any other evidence at the trial.

Evidence adduced by the State at the trial relating to the appellant's interactions with Mr Tran on and before 8 July 2018 and the appellant's mental state on 8 July 2018

1. The State called twenty‑nine witnesses at the trial. The statements of four State witnesses were read into evidence. Several witnesses gave evidence as to the appellant's interactions with Mr Tran in the days leading up to Mr Tran's death and the appellant's mental state at the time of Mr Tran's death as follows.
2. Sunshine Joelene McGuckin:

(a) At the time of Mr Tran's death, Ms McGuckin had known Mr Tran for several years (ts 77 ‑ 78) and had known the appellant for several months (ts 78). Ms McGuckin had been told on two occasions that the appellant, Mr Tran and Gary Ogilvie were living together at the appellant's house (ts 79).

(b) When the appellant, Mr Tran and Gary Ogilvie had first visited Ms McGuckin's home, a few weeks before Mr Tran's death, they were 'getting along very well', which struck Ms McGuckin as 'very odd' (ts 79, 88).

(c) The appellant visited Ms McGuckin's home on 7 July 2018. The appellant was 'aggravated' and was asking Ms McGuckin questions about Gary Ogilvie and Daniel Slater. The appellant wanted to know who had broken into his house during an incident several months previously (ts 80). The appellant told Ms McGuckin that he did not understand why Gary Ogilvie had 'moved [Mr Tran] in' (ts 81). The appellant was acting very strangely (ts 81 ‑ 82).

(d) The appellant told Ms McGuckin that when he had previously visited Ms McGuckin's home, the 'spirit' of her deceased ex‑brother‑in‑law (Jeremy Ogilvie) had 'jumped into [the appellant's] body and showed [the appellant] how he died from start to finish'. Ms McGuckin found this highly disturbing. The appellant's behaviour was aggressive but not violent (ts 82). The appellant was rambling, distressed and complaining about having a headache (ts 85). The appellant appeared to Ms McGuckin to be under the influence of methylamphetamine (ts 87).

(a) Ms Winjen had known Mr Tran for approximately 10 years at the time of his death (ts 89). Ms Winjen had never met the appellant (ts 98, 111). During cross‑examination, Ms Winjen denied ever smoking cannabis with the appellant at her kitchen table (ts 99). Ms Winjen did not give any evidence as to the appellant's interactions with Mr Tran or the appellant's mental state.

(a) Mr Smith had known Mr Tran for approximately 20 years at the time of Mr Tran's death. They were good friends (ts 116). Mr Smith did not give any evidence as to the appellant's interactions with Mr Tran or the appellant's mental state.

(a) Mr Cohen had known Mr Tran for several months at the time of Mr Tran's death (ts 149). Mr Cohen did not give any evidence as to the appellant's interactions with Mr Tran or the appellant's mental state.

(a) Ms Drayton had known Mr Tran for several months at the time of his death. Ms Drayton had purchased drugs from Mr Tran (ts 172).

(b) On 7 July 2018, Ms Drayton was with Mr Brown, Jessica Hill, Daniel Ogilvie and Mr Wright. The group drove around the 'KGB' area (ts 162 ‑ 163). They then went to 'Dom's house', as described by Ms Drayton. Ms Drayton had neither met the appellant nor been to his house before (ts 164).

(c) Ms Drayton went into the house and smoked some drugs (ts 165). Ms Drayton then went with Mr Brown, Jessica Hill, Daniel Ogilvie and Mr Wright to McDonald's Mirrabooka before returning to the house (ts 167). Ms Drayton remained in the car and did not enter the house on this occasion. Daniel Ogilvie and Mr Wright collected tools from the back of the house (ts 169). Ms Drayton did not return to the house again (ts 170).

(d) Ms Drayton gave evidence during cross‑examination that she did not see the appellant when she was doing drugs in his house, but she assumed that he was there somewhere (ts 172, 175). Ms Drayton did not see Mr Tran at the house (ts 174 ‑ 175). Ms Drayton did not give any evidence as to the appellant's interactions with Mr Tran or the appellant's mental state.

(a) Mr Gupta lived, at the relevant time, in a property near the appellant's house in Balga (ts 176). Mr Gupta gave evidence that there would sometimes be people 'coming and going' from the appellant's house. In the early hours of 8 July 2018, Mr Gupta heard noises at the appellant's property (ts 177). Mr Gupta did not give any evidence as to the appellant's interactions with Mr Tran or the appellant's mental state.

(a) Ms Oldham had known Mr Tran for around four and a half years at the time of his death (ts 183). On 6 July 2018, Mr Tran arrived at Ms Oldham's house with Shannon Hill, the appellant and another woman, none of whom Ms Oldham had met previously (ts 183 ‑ 185). When Mr Tran was out of earshot of Shannon Hill and Dom, he told Ms Oldham that he feared the two were trying to set him up and were going to kill him (ts 184).

(b) On 8 July 2018, Mr Smith arrived at Ms Oldham's house requesting that she go with him to help Mr Tran. Ms Oldham drove to Ms Winjen's house, where Mr Tran was (ts 186). When she arrived at the house, Mr Tran was banging a large stick on the ground and was arguing with a lady named Helen Riley (ts 187 ‑ 188). Mr Tran would not allow Ms Oldham to assist him with his injuries. Mr Tran instead requested that Ms Oldham take him to the appellant's (ts 189). Ms Oldham knew of the house but did not know that it was the appellant's house (ts 190).

(c) When they arrived at the appellant's house, Mr Tran attempted unsuccessfully to enter the house by barging his shoulder and hip into the front door (ts 191, 193). The appellant opened the door. The appellant looked as though he had just woken up. Mr Tran punched the appellant in the face. Ms Oldham was unsure why Mr Tran punched the appellant (ts 193).

(d) Ms Oldham waited in the car for about 5 to 10 minutes before entering the house to give Mr Tran his belongings (ts 194). Also inside the house was a woman whom Ms Oldham later ascertained was Tania Hill and a man whom Ms Oldham later ascertained was Mr Jacobs (ts 195).

(e) Mr Tran requested a phone, money and drugs. The appellant said to Mr Tran, 'I'll help you with the things that you need but you will pay for doing what you did at the front door' (ts 196). The appellant and Mr Tran were not acting aggressively towards each other, it was 'just like an exchange of words' (ts 197). There was no 'friction' between anyone when Ms Oldham left the house (ts 198).

(f) Ms Oldham confirmed during cross‑examination that 6 July 2018 was the first time she had met the appellant (ts 203). The appellant was polite and respectful towards Ms Oldham. Mr Tran presented as paranoid and under the influence of drugs (ts 205). Mr Tran told Ms Oldham that he could see demons on the street and asked her if she could also see demons (ts 204, 208).

(a) Ms Semple is an ex‑partner of the appellant. Ms Semple was in a relationship with the appellant for five years (ts 214). Ms Semple and the appellant have two children together. The relationship came to an end in 2007 (ts 215).

(b) On 8 July 2018, Ms Semple was at home with her two children and her partner, Jason Adams. At about midday the appellant arrived at Ms Semple's house. The appellant spoke with his son, who was outside. The appellant's daughter went outside to speak to him. Ms Semple then went outside to speak with the appellant (ts 215). The appellant was neither angry nor agitated and spoke calmly to Ms Semple. The appellant had blood on his face (ts 216).

(c) The appellant told Ms Semple to take the children to her parents' house for a few days because he was 'having trouble with somebody and ... it would be best'. The appellant told Ms Semple that she should stay at Mr Adams' house (ts 217). The appellant asked Mr Adams for a lift and the two left the house together (ts 218).

(d) Ms Semple confirmed during cross‑examination that when the appellant spoke to her he was calm and direct. The appellant asked for nothing other than a lift with Mr Adams (ts 220).

(a) Mr Adams is Ms Semple's partner (ts 221). On 8 July 2018, Mr Adams was at Ms Semple's house. The appellant arrived at around midday. The appellant spoke to his son outside and then requested that Mr Adams go inside and get his daughter and Ms Semple (ts 222).

(b) Mr Adams gave the appellant a lift in his car. The appellant did not provide Mr Adams with an address but instead gave Mr Adams directions as they were driving. The appellant asked Mr Adams to ensure that the children did not watch the news that evening, but gave no further explanation (ts 224).

(c) Mr Adams gave evidence during cross‑examination that the appellant was calm but slightly anxious whilst in the car. The appellant was not at any stage aggressive towards Mr Adams (ts 225).

(a) Sergeant Nicholls is a senior constable at WA Police (ts 228). On 8 July 2018, Sergeant Nicholls was stationed at Mirrabooka Police Station. Sergeant Nicholls was on duty with Sergeant Hawkes. At around 1.50 pm, a community services officer advised Sergeant Nicholls that a man named Dominic Calabro had presented at the front counter. Sergeant Hawkes agreed to go out and speak with the man (ts 229).

(b) At around 2.30 pm, Sergeant Nicholls became aware that police were required to attend at 120 Balga Avenue as a result of a call received from the appellant (ts 229). At around 3.00 pm, Sergeant Nicholls became aware that a deceased person had been located at 120 Balga Avenue and that the appellant had been located by police at the McDonald's Mirrabooka (ts 230). Sergeant Nicholls did not see or speak to the appellant (ts 231). Sergeant Nicholls did not give any evidence as to the appellant's interactions with Mr Tran or the appellant's mental state.

(a) Ms Rosetes was working at the McDonald's Mirrabooka on 8 July 2018. At around lunchtime, a man came into the McDonald's and requested a free meal. He seemed very anxious and nervous, but he was trying to remain calm (ts 235). The man requested that Ms Rosetes go and get her supervisor. He started to become angry and his tone was getting higher, but he did not look at Ms Rosetes or make eye contact with her (ts 236).

(b) Ms Rosetes' manager agreed that the man could be given some of the 'leftovers' for free (ts 236). When Ms Rosetes returned the man was asleep with his head on the table. Ms Rosetes tried to wake him but could not recall whether he woke (ts 237).

(c) Ms Rosetes gave evidence during cross‑examination that the man told her he was very tired. The man also told Ms Rosetes that he had blood all over him, but she could not see any blood (ts 238). Ms Rosetes again gave evidence that the man was anxious and nervous but appeared to be trying to remain calm. Ms Rosetes found it strange that the man was not making eye contact with her, and was instead looking into the distance behind her (ts 241).

(a) Sergeant Hawkes was stationed at Mirrabooka Police Station on 8 July 2018 (ts 242 ‑ 243). Officer Vintiner, who was at the front counter of the police station, asked Sergeant Hawkes whether he would assist with a man at the counter named Dominic Calabro. The first thing that Sergeant Hawkes noticed was that the appellant was sweating profusely (ts 243). The appellant requested that Sergeant Hawkes take notes of what he was about to say. Sergeant Hawkes wanted to know what the appellant intended to discuss before he started to write anything down. The appellant said 'Why won't you work with me on this?'. The appellant left after Sergeant Hawkes told him that if he did not explain why he was there, then the appellant would have to leave (ts 244).

(b) Sergeant Hawkes gave evidence during cross‑examination that the appellant did not show any outward signs of aggression that Sergeant Hawkes would sometimes see when people entered the police station. Other than rubbing the bridge of his nose, the appellant kept his hands and body very still (ts 255 ‑ 256). Although Sergeant Hawkes believed that the appellant was affected by methylamphetamine, the appellant was not acting aggressively or irrationally (ts 256 ‑ 257).

1. The witness statement of Julie Vintiner was read into evidence:

(a) Officer Vintiner was working on the front counter at Mirrabooka Police Station on 8 July 2018. At around 2.30 pm, a man approached the counter and stated that he had 'something very important and personal' to tell an officer. The man was 'soft spoken, distant and seemed very distressed'. The man told Officer Vintiner that his name was Dominic Calabro. Sergeant Hawkes came out and spoke to the man (ts 259).

(a) Sergeant Begg is a detective sergeant with WA Police. Sergeant Begg led the investigation into Mr Tran's death (ts 260 ‑ 261). Sergeant Begg gave evidence in relation to a 000 call that was received by the police on 8 July 2018 (ts 261). The recording was played to the jury (ts 262). Sergeant Begg did not give any evidence as to the appellant's interactions with Mr Tran or the appellant's mental state.

1. The witness statement of Vaneza Pablo Panaligan was read into evidence:

(a) Ms Panaligan was working at the McDonald's Mirrabooka on 8 July 2018. At around 1.00 pm a man came into the McDonald's and requested a free meal. Ms Panaligan said she could give him something after she had served the other customers (ts 266).

(b) The man told Ms Panaligan that he was 'really tired'. Ms Panaligan thought the man was drunk because he was mumbling and was difficult to understand. Ms Panaligan told Ms Rosetes that the man could have one of the meals which had been ordered by a customer and made, but then cancelled by the customer. Ms Panaligan told Ms Rosetes not to give the man a McFlurry. The man appeared to fall asleep at the table where he was sitting. The police later arrived at the McDonald's and arrested the man (ts 267).

(a) First Class Constable Summerfield was stationed at Mirrabooka Police Station on 8 July 2018 (ts 268). At about 3.14 pm, First Class Constable Summerfield was instructed to attend a McDonald's restaurant in Mirrabooka (ts 268). When First Class Constable Summerfield arrived, he saw the appellant (ts 268 - 269).

(b) First Class Constable Summerfield had seen the appellant earlier that day, when the appellant had flagged down the police car that he had been driving. First Class Constable Summerfield had said to the appellant 'We're not a taxi service, you're going to have to walk down to the police station' (ts 269).

(c) At the McDonald's, the appellant was sitting on his own on a seat with his head in his hands. First Class Constable Summerfield heard Senior Constable Bhatia ask, 'Are you Dominic?', to which the appellant replied 'Yes' (ts 270). First Class Constable Summerfield arrested the appellant and took him to Mirrabooka Police Station (ts 270 ‑ 273).

(d) First Class Constable Summerfield gave evidence during cross‑examination that the appellant did not resist the arrest. The appellant did not attempt to flee the McDonald's and did not have any weapons on him as far as First Class Constable Summerfield could tell (ts 279).

(a) Detective Senior Constable Cursiter was stationed at Mirrabooka Police Station on 8 July 2018 (ts 282). At about 3.00 pm, Detective Senior Constable Cursiter and Constable Semetaite attended the McDonald's Mirrabooka in response to a circulation for a unit to attend (ts 283).

(b) First Class Constable Summerfield sought to wake the appellant. The appellant said 'Give me a few moments, you know to [wake] up' or words to a similar effect (ts 284). The appellant provided his personal details to First Class Constable Summerfield (ts 285). Detective Senior Constable Cursiter asked the appellant why he had blood on his face, to which the appellant replied, 'It's probably not mine' (ts 286 ‑ 287).

(c) At about 8.40 pm that evening, Detective Senior Constable Cursiter attended Sir Charles Gairdner Hospital with the appellant. A medical assessment was carried out on the appellant. The appellant appeared to be shivering as if he was cold (ts 292). Detective Senior Constable Cursiter advised that he may be able to arrange some shoes for the appellant, who was barefoot. The appellant stated that he had taken his shoes off to 'preserve evidence, to make it easier for [the police]' (ts 292 ‑ 293).

(a) Constable Semetaite was stationed at Mirrabooka Police Station on 8 July 2018. Constable Semetaite was on duty with Detective Senior Constable Cursiter, who was driving a marked police vehicle (ts 298). At around 3.12 pm, Constable Semetaite and Detective Senior Constable Cursiter received a request to attend at the McDonald's Mirrabooka (ts 298 ‑ 299).

(b) The appellant was sitting alone with his head on the table. The appellant told Constable Semetaite and Detective Senior Constable Cursiter to give him some time to wake up (ts 299). The appellant was then arrested and taken to Mirrabooka Police Station (ts 300 ‑ 301). Constable Semetaite accompanied the appellant and Detective Senior Constable Cursiter to Sir Charles Gairdner Hospital. The appellant said that he had removed his shoes to 'preserve evidence and make it easier for [the police]' (ts 301).

(c) Constable Semetaite gave evidence during cross‑examination that, whilst the appellant was being arrested, he did not attempt to resist, run or flee. The appellant was neither aggressive nor non-compliant (ts 303). Following the appellant's medical examination at the hospital, the appellant was deemed fit for custody (ts 304).

(a) Constable Larkan was stationed at Mirrabooka Police Station on 8 July 2018. Constable Larkan was on duty with Senior Constable Kent and was driving a marked police vehicle. At around 2.58 pm, Constable Larkan and Senior Constable Kent received an instruction to attend at 120 Balga Avenue (ts 306). Constable Larkan and Senior Constable Kent attended at 120 Balga Avenue. Constable Larkan entered the house and discovered a body lying on the floor inside (ts 313). Constable Larkan did not give any evidence as to the appellant's interactions with Mr Tran or the appellant's mental state.

(a) Mr Fowles is an ambulance officer who attended at 120 Balga Avenue on 8 July 2018 (ts 361). Officer Fowles did not give any evidence as to the appellant's interactions with Mr Tran or the appellant's mental state.

1. The witness statement of Bryn James Jones was read into evidence:

(a) Mr Jones is an ambulance paramedic who attended at 120 Balga Avenue on 8 July 2018 (ts 372). Officer Jones did not give any evidence as to the appellant's interactions with Mr Tran or the appellant's mental state.

(a) Senior Constable Kent was stationed at Mirrabooka Police Station as a response officer on 8 July 2018. Senior Constable Kent was on duty with Constable Larkan and received a call to attend 120 Balga Avenue (ts 374). Senior Constable Kent did not enter the house (ts 375). Senior Constable Kent did not give any evidence as to the appellant's interactions with Mr Tran or the appellant's mental state.

(a) Sergeant Tubman was a forensic field operations investigator in July 2018. Sergeant Tubman was the senior forensic officer for the forensic investigation into Mr Tran's death (ts 380). Sergeant Tubman did not give any evidence as to the appellant's interactions with Mr Tran or the appellant's mental state.

(a) First Class Constable Shedden was on duty at the Forensic Field Operations facility in Midland on 8 July 2018. First Class Constable Shedden was in company with Sergeant Tubman, Senior Constable Pitcher, Senior Constable Smith and Science Officer Schwehr. First Class Constable Shedden received a request to attend at 120 Balga Avenue to conduct a forensic examination of the scene (ts 464). First Class Constable Shedden did not give any evidence as to the appellant's interactions with Mr Tran or the appellant's mental state.

(a) Senior Constable Pitcher is the discipline manager for forensic physical evidence in the Forensic Division of WA Police (ts 485). Senior Constable Pitcher was part of the forensic team that first responded at 120 Balga Avenue on 8 July 2018 (ts 486). Senior Constable Pitcher did not give any evidence as to the appellant's interactions with Mr Tran or the appellant's mental state.

(a) Senior Constable Outred is a crime scene investigator based at the Forensic Field Operations facility in Midland (ts 533). Senior Constable Outred explained to the jury the bloodstain pattern analysis findings in respect of Mr Tran's death (ts 533 ‑ 534). Senior Constable Outred did not give any evidence as to the appellant's interactions with Mr Tran or the appellant's mental state.

(a) Professor Joyce is a medical practitioner who practises in clinical pharmacology and toxicology (ts 582). Professor Joyce was requested to look at the toxicology results of both the appellant and Mr Tran (ts 583).

(b) Professor Joyce explained to the jury that the appellant's toxicology report demonstrated a blood concentration of 0.03 mg of methylamphetamine per litre and also a little bit of amphetamine. No other drugs were detected. This blood concentration would allow the possibility of either a state of methylamphetamine intoxication or a delusional state. However, it could not show that either of those states was actually present (ts 588).

(c) During cross‑examination, Professor Joyce confirmed that there was no chemical evidence of any other drugs impacting the appellant other than methylamphetamine. At the time of the incident with Mr Tran, Professor Joyce estimated that the appellant's blood concentration might be around 0.6 mg to 0.9 mg of methylamphetamine per litre (ts 590). Professor Joyce agreed that the appellant may have been in the state of being 'acutely intoxicated by methylamphetamine'. This means that the appellant might have been more likely to respond to a situation with violence and more likely to respond in a suspicious and paranoid way (ts 593).

(a) In July 2018 Senior Constable Durka was stationed at the Forensic Fingerprint Bureau in Midland (ts 647). Senior Constable Durka conducted fingerprint examinations in the investigation of Mr Tran's death (ts 649). Senior Constable Durka did not give any evidence as to the appellant's interactions with Mr Tran or the appellant's mental state.

(a) Dr Cadden is a forensic pathologist based at the PathWest Community Medical Centre (ts 666). Dr Cadden attended at 120 Balga Avenue on 8 July 2018 and inspected Mr Tran's body (ts 667). Dr Cadden did not give any evidence as to the appellant's interactions with Mr Tran or the appellant's mental state.

(a) Sergeant Securo was based in the Homicide Squad at WA Police in July 2018. Sergeant Securo held the role of intelligence manager during the investigation into the death of Mr Tran (ts 755). Sergeant Securo did not give any evidence as to the appellant's interactions with Mr Tran or the appellant's mental state.

1. The witness statement of Helen Narelle Riley was read into evidence:

(a) On 6 July 2018 Ms Riley went to Ms Winjen's house. Ms Winjen had agreed to Ms Riley staying with her for a little while as Ms Riley had just lost her father. Also present at the house were a man named Shaun and Mr Tran (ts 759). Mr Tran left at some point during the night (ts 760).

(b) On 7 July 2018, Mr Tran returned to the house with his partner Julie and a man named Bruno. Mr Tran came into the house with 'attitude' and punched Shaun in the face. Mr Tran, Julie and Bruno left at around 1.30 pm or 2.00 pm. Mr Tran returned at 7.00 pm (ts 760). When Mr Tran returned to the house, he said that he had been stabbed. Mr Tran appeared to be under the influence of drugs. Ms Riley, Ms Winjen and Shaun attended to Mr Tran's injuries (ts 761).

(c) When Mr Tran woke on 8 July 2018, he was angry. Mr Tran 'smashed the house up with a big brown stick'. Mr Tran said that he wanted to go to the appellant's house (ts 762). Ms Riley went to have a shower and when she returned Mr Tran had left the house (ts 763).

(d) Ms Riley did not give any evidence as to the appellant's interactions with Mr Tran or the appellant's mental state.

1. The witness statement of Amira Messiha was read into evidence:

(a) Ms Messiha met Mr Tran in around June 2018. Ms Messiha became good friends with Mr Tran (ts 764). On 21 June 2018, Ms Messiha took Mr Tran to a house in Girrawheen to visit Ms Winjen and her partner Shaun. Afterwards, Ms Messiha took Mr Tran to the appellant's house at 120 Balga Avenue. There were about four other people at the appellant's house. Ms Messiha then took Mr Tran to her house and finally to his father's house in Perth (ts 765).

(b) On another occasion, Ms Messiha went to the appellant's house as she was looking for Mr Tran. He had borrowed her car and had not returned it. Ms Messiha went into the house very briefly, said hello to the appellant and then left (ts 765). Mr Tran was also in the house. Mr Tran and the appellant appeared to be aggressive towards each other (ts 766).

(c) On 6 July 2018, Ms Messiha permitted Mr Tran to borrow her car. Mr Tran arrived back at Ms Messiha's house at around 5.00 am on 7 July 2018. Ms Messiha took Mr Tran to the Perth Police Station. Mr Tran came out of the Police Station with a man named Bruno. Ms Messiha took Mr Tran and Bruno to Mr Tran's father's house in Perth. At around 7.00 pm, Ms Messiha picked up Mr Tran and Bruno (ts 766).

(d) Ms Messiha drove Mr Tran and Bruno to Ms Winjen's house in Girrawheen. Ms Messiha waited in the car. When Mr Tran returned, he asked to drive the car. Mr Tran then drove the car to a house in Nollamara. Ms Messiha had an argument with Mr Tran because she wanted to go home. Mr Tran hit Ms Messiha on her right leg and her face. Mr Tran drove for around 20 minutes before returning to the house in Nollamara. Ms Messiha again remained in the car (ts 767). When Mr Tran returned, he told Ms Messiha that he had been stabbed. Mr Tran requested that he be driven to Ms Winjen's house, where Shaun could 'fix [him] up'. Ms Messiha dropped Mr Tran at Ms Winjen's house. This was the last time that Ms Messiha saw Mr Tran (ts 768).

(e) Ms Messiha did not give any evidence as to the appellant's interactions with Mr Tran or the appellant's mental state.

1. The witness statement of Dean Leonard Jacobs was read into evidence:

(a) In July 2018, Mr Jacobs was living temporarily at the appellant's house in Balga. The appellant had told Mr Jacobs that he could stay at the house until he arranged alternative accommodation. Other people were staying at the house too. The appellant would '[help] out his mates by letting them stay at his house'. Mr Jacobs did not know the appellant's surname (ts 769).

(b) On 6 or 7 July 2018, the appellant told Mr Jacobs to begin packing up his things because the appellant anticipated that he would soon be evicted for failing to pay his rent. On the evening of 7 July 2018, Mr Jacobs collected his belongings from the appellant's house and drove the appellant's rental car to Ms McGuckin's house in Westminster. Mr Jacobs returned to the appellant's house to do some cleaning. The appellant and Tania Hill were at the house when Mr Jacobs went to sleep (ts 770 ‑ 771).

(c) When Mr Jacobs woke in the morning, Mr Tran was in the living room with a red-haired girl (who had dropped Mr Tran at the house), the appellant, and Tania Hill. Mr Tran said that he had just been stabbed. Mr Tran would not say who had stabbed him. Mr Tran asked Mr Jacobs for drugs, but Mr Jacobs did not have any. Mr Jacobs left the house shortly afterwards. Mr Tran was alive when Mr Jacobs left the appellant's house (ts 771).

(d) Mr Jacobs did not think there was any tension between the appellant and Mr Tran. When Mr Jacobs had seen the two a few days earlier, '[i]t seemed like they were getting on fine'. When Mr Jacobs left the appellant's house, the appellant was 'calm and composed' (ts 772).

(e) Mr Jacobs had known Mr Tran for a couple of months. Mr Jacobs described Mr Tran as a 'young cocky guy'. Mr Jacobs assumed that both the appellant and Mr Tran were drug users. Mr Jacobs had also seen Mr Tran at the appellant's house a few days previously. It was 'chilled out' and 'there [were] no issues between anyone' (ts 772).

1. The witness statement of Danielle Jordan Stafford was read into evidence:

(a) Detective First Class Constable Stafford was on duty with Detective First Class Constable O'Hart on 8 July 2018. Detective First Class Constable Stafford was made aware of a suspicious death incident at 120 Balga Avenue in Balga (ts 773).

(b) Detective First Class Constable Stafford spoke with the appellant whilst he was in a holding cell at Mirrabooka Police Station (ts 774). Detective First Class Constable Stafford did not give any evidence as to the appellant's interactions with Mr Tran or the appellant's mental state.

(a) Detective Senior Constable Carbone was based in the Homicide Squad at WA Police in July 2018. Detective Senior Constable Carbone became aware of the discovery of a deceased man at 120 Balga Avenue in Balga. Detective Senior Constable Carbone was made the suspect manager for the investigation (ts 794).

(b) On 8 July 2018, Detective Senior Constable Carbone attended Mirrabooka Police Station with Detective Senior Constable Dorrington to meet with the appellant. Detective Senior Constable Carbone and Detective Senior Constable Dorrington conducted an electronic record of interview with the appellant (ts 795). Detective Senior Constable Carbone and Detective Senior Constable Dorrington then took the appellant to Perth Watch House (ts 800).

(c) Detective Senior Constable Carbone did not give any evidence as to the appellant's interactions with Mr Tran or the appellant's mental state.

(a) Ms Murakami is a forensic scientist at the PathWest Forensic Biology Laboratory (ts 809). Ms Murakami was asked to examine the DNA profiles of various exhibits from the investigation into Mr Tran's death (ts 815). Ms Murakami did not give any evidence as to the appellant's interactions with Mr Tran or the appellant's mental state.

(a) Detective Senior Constable Dorrington is based in the Homicide Squad at WA Police (ts 847). On 8 July 2018, Detective Senior Constable Dorrington attended at Mirrabooka Police Station with Detective Senior Constable Carbone in relation to the investigation into Mr Tran's death. The two conducted an electronic record of interview with the appellant (ts 848).

(b) The appellant told Detective Senior Constable Dorrington that Mr Tran was 'threatening and assaulting' him (ts 896). The appellant said that Mr Tran had assaulted and threatened him over the four days prior to Mr Tran's death (ts 897).

Evidence adduced by the State at the trial regarding Mr Tran's injuries and cause of death

1. Several State witnesses gave evidence regarding Mr Tran's injuries and cause of death.
2. James Terence Larkan:

(a) Evidence about Constable Lankan's arrival at 120 Balga Avenue on 8 July 2018 with First Class Constable Kent is set out at [93(a)] above.

(b) Constable Larkan knocked on the flyscreen on the front door. The flyscreen was unlocked so Constable Larkan opened it and knocked loudly on the front door (ts 307). Constable Larkan tried to open the door after receiving no response, but the door was locked (ts 309). Constable Larkan walked down the left‑hand side of the property and scaled a pile of bricks in order to enter the backyard (ts 309 ‑ 310).

(c) Constable Larkan walked down a concrete path to the rear courtyard of the house and knocked on the back door (ts 311, 312). Constable Larkan eventually gained access to the premises via a glass sliding door (ts 313).

(d) Once inside the house, Constable Larkan saw a body lying on the floor. The person's head was on the left‑hand side, the feet were on the right-hand side, and their back was towards Constable Larkan (ts 313). There was a large amount of blood along the floor. The person was unresponsive. The person's leg was hard and their skin was cold. Constable Larkan could not find a pulse. The person had deep wounds along the lower right part of their back. The person's face and head were very swollen and bruised. Constable Larkan could see that the person was a male. The man had black tape around his ankles and his arms were underneath his body (ts 314 ‑ 315).

(e) Constable Larkan saw a black knife or a black-handled knife on the floor approximately 1 to 1.5 m away from the man's head. Also on the floor was a length of black cable or cord, a dark coloured piece of cloth, a white large piece of fabric, a pair of garden secateurs and a long metal pole with a metal sheet attached to the top of it (ts 322). There was another knife on the left‑hand armrest of a single-seater chair. This knife was approximately 20 cm in length (similar to the black‑handled knife) and had a wooden handle (ts 323). During examination‑in‑chief Constable Larkan was shown various implements that he saw during his initial examination of the scene, including the knives, a tow ball hook, the pair of garden secateurs and the long metal pole.

(f) Officer Luke Fowles attended the scene whilst Constable Larkan was there and checked the man's vital signs, but found no signs of life (ts 354).

(g) Constable Larkan believed that at the time he found the body, the man was already deceased. There was no active bleeding (ts 358). Officer Fowles formally declared the man deceased at 3.21 pm (ts 360).

(a) As I have mentioned, on 8 July 2018, Officer Fowles (an ambulance officer) attended at 120 Balga Avenue (ts 361). Officer Fowles scaled the brick wall around the side of the property, followed the pathway and entered the house via the sliding door (ts 363). Officer Fowles was directed into the lounge area of the house by Constable Larkan (ts 364).

(b) Officer Fowles could see a male body lying on the floor. There was a large pool of blood coming from the left side of the man's body in his shoulder area and above his head. The man was wearing only shorts and had bloodstains on his back. There were also various items and tools on the floor around the room. The man was lying face down with his head turned towards the right. Officer Fowles felt the man's left calf, which was cold, stiff and rigid. Officer Fowles then tried to find the man's right carotid pulse but found no signs of life (ts 364).

(c) The pool of blood was extremely large and seemed to be partly congealed (meaning it was clotting) and the blood was dark in colour (ts 364 ‑ 365). Officer Fowles noted the following injuries: a stab wound to the right side of the man's back; bruising to the left side of the man's back and shoulder; and swelling to the right side of his face (ts 367).

(d) The implements that Officer Fowles saw around the room included a grey and orange serrated knife, a black cord with plugs on the end, a large 'tile scraper' like instrument and some other cables (ts 367). Officer Fowles also saw a pair of garden secateurs (ts 368).

(a) The witness statement of Officer Jones was read into court. As I have mentioned, Officer Jones is an ambulance paramedic who attended 120 Balga Avenue on 8 July 2018 (ts 372). He entered the premises and saw Officer Fowles with the body of a male person. The man was lying 'left lateral' with a big pool of blood around his head. Officer Fowles told Officer Jones that he did not require any assistance because the body had signs of rigor mortis (ts 373).

(a) On 8 July 2018, Senior Constable Kent was on duty with Constable Larkan and received a call at around 3.00 pm to attend at 120 Balga Avenue (ts 374).

(b) Whilst Constable Larkan knocked on the front door, Senior Constable Kent made his way around the left‑hand side of the house into the courtyard area. Constable Larkan called out to Senior Constable Kent and told him that he had found a body in the house. Senior Constable Kent stood at the sliding door but did not enter the house (ts 376).

(c) Senior Constable Kent could see the body of a male person on the floor, face down with a pool of blood around his head area. Senior Constable Kent could also see a dark‑handled knife near the man's head, as well as a 'silver pole type thing' and a pair of garden shears. Senior Constable Kent saw Constable Larkan check for signs of life (ts 377).

(a) Sergeant Tubman oversaw the forensic response to Mr Tran's death and coordinated the various crime scene managers and teams that were involved in the forensic examination (ts 381).

(b) Sergeant Tubman attended at 120 Balga Avenue at around 5.00 pm on 8 July 2018 (ts 382). Sergeant Tubman called Dr Cadden, the pathologist who conducted Mr Tran's post‑mortem examination, to come to the scene and oversee the process (ts 387).

(c) Sergeant Tubman explained to the jury a procedure called blood pattern analysis, in which bloodshed events and patterns are interpreted or reconstructed to determine how they came to be (ts 390). Senior Constable Petley was the first officer at the scene who collected the swabs of various bloodstains and Senior Constable Outred was the officer who compiled the report (ts 390, 391).

(d) Sergeant Tubman was shown various photographs during examination‑in‑chief which were taken during the walkthrough procedure at the scene. Sergeant Tubman identified a large pool of blood surrounding Mr Tran's body as well as bloodstaining on the back of Mr Tran's legs, torso and head, which was subject to blood pattern analysis. Sergeant Tubman also identified an orange and black‑handled serrated knife and a black‑handled knife (ts 398 ‑ 399). Sergeant Tubman also noted various bloodstains on the floor and on the three‑seater couch (ts 400). Mr Tran had some tape wrapped around his neck (ts 401).

(a) First Class Constable Shedden was allocated the role of exhibits officer and video recorder (ts 465).

(b) When First Class Constable Shedden entered the living room at 120 Balga Avenue he saw the body of a deceased male lying face down. First Class Constable Shedden saw bloodstaining on the body and also saw a number of items lying around the room. First Class Constable Shedden seized 11 exhibits including, relevantly, a metal paint scraper, garden shears, black cable, an orange and black handled serrated knife and a grey knife (ts 467).

(c) The man was lying face down with his arms underneath his torso. When his body was rolled over, First Class Constable Shedden could see that his hands had been bound together by tape and an electrical cord (ts 468 ‑ 469).

(d) On 10 July 2018, First Class Constable Shedden received a request to assist with Mr Tran's post‑mortem examination (ts 472). First Class Constable Shedden attended the examination with Science Officer Schwehr and Dr Cadden. First Class Constable Shedden performed the role of crime scene manager and exhibits officer during the three‑day examination (ts 475).

(e) As well as collecting various exhibits during the examination, First Class Constable Shedden conducted an alternative light source examination of Mr Tran's body. This involved the use of various wave lengths of light or colours of light to detect items of forensic interest (ts 476).

(f) First Class Constable Shedden was shown various photographs during examination‑in‑chief that were taken throughout the post‑mortem examination. First Class Constable Shedden identified various injuries at the top of Mr Tran's head and an injury just behind the top of his left ear (ts 479). Mr Tran also had injuries on the back of his neck, behind his right ear, around his neck and shoulders, his right cheek, his right shoulder, the left hand side of his back, and his right forearm (ts 480 ‑ 481).

(a) Senior Constable Pitcher attended at 120 Balga Avenue on 8 July 2018 and carried out photography of the scene and an examination of shoe impressions that were inside the premises (ts 486). Senior Constable Pitcher was also required to make comparisons with respect to Mr Tran's injuries and the various implements that were found at the scene. This involved determining which items that had been seized might be suitable for comparison to the 10 impressions that Senior Constable Pitcher had found on Mr Tran's body (ts 493 ‑ 496).

(b) Senior Constable Pitcher found that impression number 1 (on Mr Tran's rear left shoulder) could have been caused by the metal tow hook found at the scene (ts 494, 502). There were no similarities between impression number 2 (on the left‑hand temple) and the implements (ts 494, 505). Impression number 3 (behind the right ear) and impression number 4 (right-hand side of the head) could have been caused by the tow hook (ts 494, 505, 506, 515). Impression number 5 (rear right‑hand side of the head) was also consistent with being caused by the tow hook (ts 494, 516 ‑ 517). Impression number 6 (right‑hand side of the chest) was not caused by any of the implements (ts 494, 517). Impression number 7 (rear left‑hand side of the head) and impression number 8 (also rear left‑hand side of the head) were consistent with being caused by the tow hook (ts 494, 518 ‑ 519). Impression number 9 (rear left shoulder) was also consistent with being caused by the tow hook (ts 519, 521). Impression number 10 (upper centre portion of back) did not provide enough detail for Senior Constable Pitcher to provide a useful comparison with any of the implements (ts 521 ‑ 522).

(c) Senior Constable Pitcher confirmed in cross‑examination that impressions 1, 3, 4, 5, 7, 8 and 9 were consistent with being made by the tow hook (ts 529). Impressions 2 and 6 were not consistent with the tow hook, the paint scraper or the orange and black handled knife. Impression 10 did not provide enough detail to make a conclusion (ts 529 ‑ 530).

(a) Senior Constable Outred specialises in bloodstain pattern analysis (ts 533). Bloodstain pattern analysis involves the examination of bloodstains in order to understand the event or sequence of events that led to the deposition of the bloodstains (ts 535). Senior Constable Outred prepared a PowerPoint presentation to explain the bloodstain pattern analysis process to the jury.

(b) On 9 July 2018, Senior Constable Outred attended at 120 Balga Avenue. Senior Constable Petley had carried out a bloodstain pattern analysis on 8 July 2018 (ts 546). Senior Constable Outred selected blood stains to be sampled (ts 547). With the assistance of reports from other sources, including the PathWest reports, fingerprints reports and the report to the coroner, Senior Constable Outred was able to compile her own report and come to conclusions about the evidence she had examined (ts 549 ‑ 550).

(c) Senior Constable Outred was unable to attribute any objects as the cause of the blood stains on the couch because the stains had no discernible shape or pattern (ts 552).

(d) The backrest of the left side of the couch, between the seat and headrest, contained transfer patterns that Senior Constable Outred examined (ts 552). The only conclusions that Senior Constable Outred could draw were that an object bearing liquid blood had come into contact with the couch, that Mr Tran's back was in contact with the couch after bloodshed had commenced, and that Mr Tran was leaning over to one side (ts 555). Senior Constable Outred was unable to say whether Mr Tran was seated or in some other position. She could only say that the orientation of the pattern suggested that part of Mr Tran's back was leaning to the left end of the couch (ts 556). The most likely scenario was that when Mr Tran was on the couch he had wounds that were actively bleeding (ts 614 ‑ 615).

(e) Senior Constable Outred analysed various other areas of blood spatter, which had arisen from a source of liquid blood being distributed through the air in the form of droplets (ts 556 ‑ 557). Senior Constable Outred used arrows on photographs of the bloodstains to illustrate to the jury the direction in which the blood was travelling (ts 557).

(f) Senior Constable Outred said that the blood stain pattern on the wood panelling of the wall suggested that the liquid blood was travelling in an upward direction (ts 560). The blood spatter on the headrest of the couch and the blood spatter on the wall had a common area of origin (ts 616).

(a) Professor Joyce was requested to conduct drug analyses on specimens of blood collected from the appellant and Mr Tran (ts 583). A report prepared by ChemCentre indicated that Mr Tran's blood sample was taken at 6.30 am on 9 July 2018 (ts 584). Methylamphetamine, tetrahydrocannabinol, diazepam and desmethyldiazepam were found in Mr Tran's blood sample (ts 585).

(b) The methylamphetamine was at a concentration level of 0.19 mg/L (ts 585). Two possibilities may have arisen from this level of concentration: acute amphetamine intoxication and amphetamine‑induced delusional state. Acute amphetamine intoxication refers to the typical effects that a user of methylamphetamine may expect, including confidence, optimism, increased energy and increased risk‑taking behaviour. The increased risk-taking behaviour may lead to aggression and violence (ts 586). Once a user has become violent, the anger is less likely to subside, and they may be unable to retreat from it. It can take several days for a person's mental state to return to equilibrium, and they will often feel miserable during this time. A user who falls into a cycle of taking more methylamphetamine in order to counter the 'low' may find themselves in an amphetamine-induced delusional state. Key characteristics of this delusional state are paranoia and further violence (ts 587).

(c) The tetrahydrocannabinol was at a concentration level of 16 μg/L (ts 589). If no other drug was present, Professor Joyce would expect a person with this concentration level to be intoxicated with cannabis. They might appear fairly quiet, talk slowly, appear clumsy and feel detached and happy. Professor Joyce was unable to say whether the tetrahydrocannabinol had such an effect on Mr Tran (ts 589). The only conclusion that Professor Joyce could draw was that if tetrahydrocannabinol intoxication is combined with methylamphetamine intoxication, a user would be less competent for clear thinking than somebody who is affected by just one of the drugs alone (ts 589 ‑ 590).

(d) Professor Joyce gave evidence that the appellant's methylamphetamine concentration level was 0.03 mg/L (ts 588). He said that, although the appellant's methylamphetamine reading at the time of the incident would have been around 0.06 to 0.09 mg/L, he would not be confident that Mr Tran was 'significantly more intoxicated' by methylamphetamine than the appellant. This is because an individual's response to methylamphetamine depends on many factors (ts 590).

(e) Professor Joyce stated that evidence given throughout the trial as to Mr Tran's state of mind in the 24 hours prior to his death, relevantly, that demons were chasing after him, could be indicative of an amphetamine‑induced delusional disorder. This evidence satisfies two of the criteria required for a psychiatric diagnosis of amphetamine-induced delusional disorder, namely paranoid delusions and visual hallucinations (ts 594 ‑ 595).

(f) Professor Joyce agreed that a person intoxicated by methylamphetamine at the same level as Mr Tran might become agitated and spontaneously violent (ts 596). Because of the high risk of entering into violence, a person who is affected by methylamphetamine-induced delusions may also face a high risk of death from violence themselves (ts 598). Further, two parties to a physical conflict who are both intoxicated by methylamphetamine face a higher risk of serious injury or death (ts 598).

(g) Professor Joyce accepted that if Mr Tran was suffering from methylamphetamine‑induced delusions, he would have been at an extremely high risk of killing someone (ts 598).

(a) Senior Constable Durka conducted an analysis of 21 fingerprint exhibits from the crime scene (ts 651). Senior Constable Durka identified a fingerprint from the table leg as the left palm of the appellant (ts 653). A fingerprint on the tape around Mr Tran's ankle was identified as the left index finger of the appellant (ts 653 ‑ 654). Another fingerprint on the tape around Mr Tran's ankle was identified as the left thumb of the appellant (ts 654). A fingerprint on the paint scraper was identified as the left middle finger of the appellant (ts 655). Various other fingerprints were also identified as being those of the appellant.

(b) Senior Constable Durka said that, when he conducted the forensic examination of the appellant's house, he identified two separate footprints of Mr Tran (ts 747). Both footprints were of the ball of Mr Tran's left foot (ts 747 ‑ 748). Both of the footprints were pointing towards the three‑seater couch (ts 749).

(a) On 8 July 2018, Dr Cadden attended at 120 Balga Avenue. When Dr Cadden entered the lounge room, he saw a deceased person on the floor surrounded by a lot of blood (ts 667). Dr Cadden spent approximately one hour at the house inspecting Mr Tran's body (ts 668). Dr Cadden's recollection from photographs taken at the scene was that Mr Tran's body was face down (ts 669).

(b) Dr Cadden was subsequently requested by the State Coroner to carry out a post‑mortem examination of Mr Tran's body. Dr Cadden carried out the examination over a three‑day period. Dr Cadden prepared an aide memoire to assist the jury which described a number of injuries labelled 1 to 26 (ts 670).

(c) Injury number 1 was a deep, gaping wound which went from side to side on the front of Mr Tran's neck. The wound divided the main windpipe (the trachea) in two places. It reached the neck bone, which is part of the upper spine (ts 673). There was a partial division of the left column carotid artery and the left interior jugular vein (ts 674). Dr Cadden could not say if the cut went from left to right or from right to left. Dr Cadden could not say if the person who inflicted the wound did so from behind Mr Tran or in front of him (ts 674 ‑ 675). An injury of this kind would cause a person to bleed furiously. A rapid death would be expected (ts 678 ‑ 679).

(d) Injury number 2 was on the front of Mr Tran's chest, below his collarbones. The wound went 'obliquely' or 'at a bit of an angle' into Mr Tran's chest. The wound entered the chest cavity, went into the heart, and caused a major division of the right chamber of the heart (ts 676). The wound went through Mr Tran's sternum (ts 679). Because the wound traversed the right ventricle of Mr Tran's heart, his heart would not have been able to function properly. That injury alone would have been able to bring about a rapid death (ts 678). Dr Cadden believed that the grey/silver knife found at the scene (Exhibit 6) could have been capable of causing injury number 2 (ts 679).

(e) Injury number 3 was also on the front of Mr Tran's chest, but to the right of the midline. The wound went into the chest muscles and out towards the edge of the chest. The wound also entered the chest cavity and impinged on bone (ts 681). Dr Cadden believed that the grey/silver knife (Exhibit 6) found at the scene could have been capable of causing injury number 3 (ts 682).

(f) Injury number 4 was a wound to Mr Tran's jaw (ts 683). The injury was to the left of the midline. Some of the injury was bruising but one area actually penetrated the jaw and divided the underlying bone. Dr Cadden believed that the injury was caused by a sharp object (ts 684).

(g) Injuries 5, 6, 7, 8 and 9 were various wounds to Mr Tran's back. They were similar in appearance. There were three wounds on the left‑side of Mr Tran's body and two on the right‑side of his body. The wounds went into underlying tissue and dug into Mr Tran's chest cavity (ts 685). Injury number 10 was in the area of the right shoulder blade and did not penetrate the skin. It simply 'impinged' onto it. Injury number 11 was down the bottom of Mr Tran's back towards his pelvis. This injury did not penetrate a body cavity. It merely went through the skin and into the underlying fat (ts 694). Dr Cadden accepted that the wooden handled knife (Exhibit 7) would reconcile with causing injuries 5 to 11 (ts 695).

(h) Injury number 12 was an area of bruising on the back side surface of the chest wall, just to the left of Mr Tran's armpit. The injury appeared to Dr Cadden to have a pattern (ts 695). The markings were unusual in that they were somewhat V‑shaped and each marking had an imprint on the skin surface (ts 696). Dr Cadden thought that this may represent the use of another weapon (ts 697). Dr Cadden suggested that the 'tooth surface' of the serrated knife (Exhibit 5) may have accounted for the serrated appearance of this injury (ts 698, 699).

(i) Injury number 13 was described as a patterned abrasion on the back of Mr Tran's neck (ts 697). Dr Cadden gave evidence that the saw tooth surface of the tow hook could have potentially produced such an appearance on Mr Tran's skin (ts 699).

(j) Injury number 14 was a laceration on the skin surface behind Mr Tran's left ear (ts 699). In the immediate vicinity of the laceration there were some linear markings. The laceration went well into Mr Tran's scalp and his skull was fractured. This caused a traumatic brain injury (ts 700).

(k) Injury number 15 was a ragged laceration on the scalp. Small lines could be seen towards the lower back aspect of the injury (ts 701). Injury number 16 was in the same general area on the left side of the head but a little further up the side surface. It was again a tear on the scalp surface, with lined imprint marking also visible (ts 702). Injury number 17 was a crescent‑shaped injury to the left temple. The injury was an area of readily evident abrasion. Dr Cadden focused on injury number 17 because it may have been caused by a particular implement (ts 703).

(l) Injuries 18 and 19 bore similarities. The injuries were wounds located on the upper front aspects of Mr Tran's right (injury number 18) and left (injury number 19) legs. The injuries were on the skin surface, were larger than Mr Tran's back injuries, and went into the underlying fat, muscle and tissue of his legs (ts 704). No major vessels or nerves were severed (ts 705). Dr Cadden said it would be anticipated that injury number 18 and injury number 19 had been caused by a broad bladed knife or implement (possibly the same which had caused injury number 2 and injury number 3) (ts 707).

(m) Injury number 20 was on the right side of Mr Tran's head, behind his ear. There was an abrasion on the surface of the skin which may have represented the impact of a particular implement (ts 708). Dr Cadden also noted that Mr Tran had bruising to his eyelids, which was likely caused by some form of trauma to the head (ts 710). Dr Cadden gave evidence that an implement such as the tow hook could impart onto the skin surface a 'stamp-like' appearance or abrasion (ts 711).

(n) Injuries 21, 22 and 23 were injuries to the right forearm. Dr Cadden described the injuries as apparent incised injuries or cuts (ts 713). Injury number 21 went between the two bones of the forearm but did not involve a major vessel injury. Dr Cadden believed that a sharp implement, similar to that which caused the injuries to the leg and chest, might have been used to inflict these injuries (ts 715).

(o) Injury number 24 was an injury on the palmar surface of Mr Tran's right hand. Injury number 24 refers specifically to a cut on the skin web between his thumb and index finger. Dr Cadden gave evidence that some form of sharp implement might have caused this injury (ts 717).

(p) Injury number 25 was an injury to the skin web between the thumb and index finger of Mr Tran's left hand (ts 717 ‑ 718). Dr Cadden described the injury as an incised injury or cut which had gone through the skin into the underlying tissue. The potential explanation for this cut would be the same sharp implement that may have caused injury number 24 (ts 718).

(q) Injury number 26 was an injury to Mr Tran's fifth finger on his left hand (ts 718). This was a 'slice-like' injury producing a small flat portion of the skin (ts 719).

(r) Whilst conducting the post‑mortem examination, Dr Cadden also saw an injury to Mr Tran's upper lip. Dr Cadden requested that Dr Knott, the departmental forensic odontologist, deal with that specific area of injury. Odontology is the forensic application of dental skills. Dr Knott provided Dr Cadden with a report outlining his findings on the injury (ts 719 ‑ 720). The injury was a deep penetrating wound to the right of Mr Tran's upper lip (ts 720). Mr Tran had another deep laceration inside his mouth (ts 721).

(s) Dr Cadden's ultimate finding on Mr Tran's cause of death was 'incised wound to neck in a man with multiple penetrating wounds to chest' (ts 723 ‑ 724).

(t) During cross‑examination, Dr Cadden accepted that he was unable to determine an accurate order in which each of Mr Tran's injuries had occurred (ts 724). Dr Cadden could not say whether all of the injuries were inflicted prior to Mr Tran's death. Some injuries may have been inflicted after his death. Dr Cadden also could not rule out the possibility that injury number 26 (the injury to Mr Tran's little finger) had occurred in a prior incident (ts 725).

(u) Dr Cadden attributed the incised wound to the neck as the primary cause of death because the blood loss caused by an injury of that kind is 'simply non‑survivable' (ts 726). Although Dr Cadden could not say definitively which injury caused the blood pool underneath Mr Tran's body at the scene, the neck injury was the most likely cause (ts 730).

(v) Injuries 5 to 11 were likely to have been inflicted with the same implement, possibly the black knife with the non‑serrated edge (ts 732). These injuries did not kill Mr Tran, however if there were no other injuries they could have eventually contributed to his death. Injuries 1, 2, 3, 18 and 19 were likely to have been inflicted with the same implement, possibly the silver knife (ts 733). Injury 2, which pierced Mr Tran's heart, would have been fatal on its own (ts 734). Considerable to great force would have been required to cause injury number 2 (ts 739).

(w) Injuries 21, 22 and 23 were possibly caused by the silver knife (ts 736). Injury 13 was possibly caused by the orange and black handled knife (ts 738). Injury 4 may have been caused by the paint scraper (ts 738 ‑ 739).

(a) Ms Murakami was asked to carry out DNA analysis examination of various exhibits in the investigation into Mr Tran's death, including the knives and the tow hook. Ms Murakami detailed her findings in a report which was provided to the jury (ts 815). Many of the samples returned a mixed DNA profile consistent with having come from two individuals. Contributors identified within the mixed DNA profile matched the reference DNA profiles of Mr Tran and the appellant for many of the samples, often with a statistical weighting of being greater than 100 billion times more likely to occur if Mr Tran and the appellant were contributors to the swabs (ts 818 ‑ 840).

**The applications in an appeal to adduce additional evidence

Pre-18 July 2022 hearing** Application in an appeal filed 3 September 2021 to adduce additional evidence, namely the affidavit of Mr Woodhouse sworn 31 August 2021

1. On 3 September 2021, the State filed an application in an appeal dated 3 September 2021 for leave to adduce additional evidence, namely the affidavit of Clayton Steven Woodhouse sworn 31 August 2021.
2. The application was accompanied by an affidavit sworn on 3 September 2021 by Katharine Celia Cook. Ms Cook states in her affidavit, relevantly, that the State seeks to adduce the evidence in response to ground 2 of the appellant's grounds of appeal as well as the appellant's applications to adduce additional evidence dated 7 April 2021, 17 May 2021 and 8 July 2021 [3].
3. Mr Woodhouse states in his affidavit, relevantly, that:

(a) Mr Woodhouse was the appellant's solicitor and appeared as junior counsel at the appellant's trial [2] ‑ [3].

(b) Mr Woodhouse first spoke with the appellant's sister, Luisa Calabro, following his initial meeting with the appellant at Casuarina Prison in or around late 2018 [6]. The appellant had asked Mr Woodhouse to contact Ms Calabro because she had information regarding Mr Tran; in particular, Mr Tran's propensity for violence and criminal behaviour that may be relevant to the appellant's defence at trial [7]. The appellant authorised Mr Woodhouse to discuss his case with Ms Calabro [8]. The appellant instructed Mr Woodhouse that Ms Calabro had contact details for a number of potential defence witnesses who could attest to Mr Tran's propensity for violence [9]. The appellant also instructed Mr Woodhouse that Mr Tran was an extremely violent individual with a significant criminal history, and that the appellant had in essence acted in self‑defence when he killed him [10]. Mr Woodhouse contacted Ms Calabro by telephone, as instructed, immediately following his first meeting with the appellant [11]. Ms Calabro told Mr Woodhouse that she had spoken to various people who would be willing to give evidence at trial as to Mr Tran's violent nature [12]. Ms Calabro also told Mr Woodhouse that she had a number of screenshots from Mr Tran's Facebook page that would be of assistance to the defence [13]. Mr Woodhouse asked Ms Calabro to provide him with the names and contact details of the potential defence witnesses and with the screenshots from Mr Tran's Facebook page [14].

(c) Ms Calabro was difficult to reach and communicate with and did not provide Mr Woodhouse immediately with the information that she had discussed with him [16] ‑ [17]. Mr Woodhouse did not meet Ms Calabro in person until the first day of the appellant's trial [20]. Although she did not attend every day of the trial, Mr Woodhouse spoke to Ms Calabro on many occasions throughout the trial, both in person and by telephone [21]. It was Mr Woodhouse's practice to convey the nature and content of all discussions, communications and correspondence with Ms Calabro to the appellant and Mr Freitag [22].

(d) Soon after the first telephone call (in or around late 2018) Ms Calabro provided Mr Woodhouse with three or four screenshots from Mr Tran's Facebook page [23] ‑ [24]. However, the screenshots were 'somewhat vague' and it was unclear whether they were in fact linked to Mr Tran [25]. Mr Woodhouse shared the screenshots with the appellant and Mr Freitag as soon as practicable after he received them [26].

(e) Ms Calabro informed Mr Woodhouse that she had a large number of potential defence witnesses, but Mr Woodhouse's recollection is that ultimately Ms Calabro provided him with approximately three or four names and she did so sporadically over time [27]. To the best of Mr Woodhouse's recollection, Ms Calabro did not provide him with the contact details of the potential defence witnesses [28]. Mr Woodhouse could not recall the specific names that Ms Calabro provided him with [29]. Mr Woodhouse gave the names to the appellant when he received them [30]. His recollection is that the appellant was already familiar with the names [31].

(f) Before and during the trial the issue of the Facebook screenshots, the names of the potential defence witnesses provided by Ms Calabro, the overall issue of witnesses and the evidence to be called or used by the defence at trial was discussed on numerous occasions between Mr Woodhouse, the appellant and Mr Freitag [32]. Ultimately, it was decided between Mr Woodhouse, the appellant and Mr Freitag that there was significant evidence as part of the State's case of Mr Tran's character and propensity for violence [33]. That evidence could be and was indeed adduced from the State's witnesses at trial. Consequently, it was agreed that the Facebook screenshots would not be used at the trial and no defence witnesses (apart from the appellant) would be called [33]. The appellant agreed to that course of action and did not, at any stage, raise any concerns or reservations about it [34].

(g) In the early stages of the trial, the prosecution provided the defence with a copy of Mr Tran's criminal record [35]. Mr Woodhouse showed the criminal record to the appellant shortly after receiving it [36].

(h) During a break in the early stages of the trial, Ms Calabro approached Mr Woodhouse and Mr Freitag and told them she had received information that other individuals were present at the time of Mr Tran's death [37] ‑ [38]. Mr Freitag and Mr Woodhouse explained that they would not be advancing this proposition at the trial because it was inconsistent with the known evidence and with the appellant's instructions [41]. At the next available opportunity, Mr Woodhouse conveyed to the appellant details of that discussion with Ms Calabro [43]. The appellant confirmed to Mr Woodhouse that he was alone when Mr Tran died and that no one else was present or responsible for Mr Tran's death [44]. The appellant's 'firm, consistent and unequivocal' instructions to Mr Woodhouse had, at all times, been that the appellant had alone killed Mr Tran and that no one else was present when he did so [39]. Further, the forensic evidence indicated that only one person was present when Mr Tran was killed [40].

(i) Ms Calabro approached Mr Woodhouse on at least two further occasions during the trial to advance again the proposition that the appellant was not solely responsible for Mr Tran's death and that there were other people present when Mr Tran was killed who were responsible for his death [45]. On each occasion, Mr Woodhouse told Ms Calabro that the proposition she was advancing was inconsistent with the known evidence and the appellant's instructions [45]. Mr Woodhouse informed the appellant of each of the subsequent approaches by Ms Calabro [48]. On each occasion the appellant reiterated his instructions that he was alone when he killed Mr Tran [48].

(j) At all times, Mr Woodhouse's dealings with Ms Calabro were 'mutually polite, cordial and courteous' [51]. Mr Woodhouse did not, at any stage, tell Ms Calabro to 'stay out of it' or 'let me do my job' or words to that effect.

Application in an appeal filed 7 July 2022 for leave to adduce additional evidence, namely the affidavit of Mr Levison sworn 6 July 2022

1. On 7 July 2022, the appellant filed an application in an appeal dated 3 July 2022 for leave to adduce additional evidence, namely the affidavit of Bonar Raoul Levison sworn 6 July 2022.
2. The application was accompanied by an affidavit sworn on 6 July 2022 by the appellant. The appellant states in his affidavit, relevantly, that the affidavit of Mr Levison which the appellant seeks to adduce contains 'significant evidence of the behaviour of Andrew Tran' in relation to 'the propensity of extreme violence, threats, intimidation, the access to and use of lethal weapons ..., deprivation of liberty, unlawful demands and the like ...' [5].
3. Mr Levison states in his affidavit, relevantly, that:

(a) Mr Levison met Mr Tran at Mr Tran's home in mid to late 2017 [2]. When Mr Levison was at Mr Tran's house, an argument occurred between Mr Tran and his girlfriend at the time, Monique Phatouros [9]. The argument escalated and Mr Tran produced a gun which he pointed at Ms Phatouros [14] ‑ [16].

(b) Several weeks later, another incident occurred at Mr Tran's house. Mr Tran pointed a gun at Mr Levison's head and his foot [23] ‑ [27]. A week or two later, Mr Tran called Mr Levison and made threats to burn Mr Levison's house down and kill his parents [29] ‑ [32]. On one occasion, Mr Tran had bragged to Mr Levison about torturing and killing animals as a child [39]. On another occasion, Mr Levison witnessed Mr Tran take a person 'hostage' in his home [40] ‑ [48].

(c) A few days prior to Mr Tran's death, Mr Levison accompanied Mr Tran to the appellant's home [55]. When Mr Tran left the appellant's home, the appellant told Mr Levison that Mr Tran had punched him in the face [63].

Appeal hearing on 18 July 2022 Oral application in an appeal for leave to adduce additional evidence, namely the affidavit of Luisa Calabro sworn 17 May 2021 and statutory declaration made 8 July 2021

1. At the hearing of the appeal on 18 July 2022, the appellant made an oral application for leave to adduce additional evidence, namely an affidavit of Luisa Calabro sworn 17 May 2021 and a statutory declaration of Luisa Calabro made 8 July 2021.
2. Ms Calabro states in her affidavit sworn 17 May 2021, relevantly, that:

(a) Ms Calabro received a telephone call from a man named Joel Brushek [1]. Mr Brushek said that he was a friend of the appellant and that he had had a 'personal encounter' with Mr Tran [1]. Mr Brushek told Ms Calabro that Mr Tran had kidnapped a boy and held him captive [2]. Mr Brushek said 'he knew that [the] boy [would not] be able to endure [Mr Tran's] torture tactics' and Mr Brushek 'put himself up to take the [boy's] place' [2]. Mr Brushek explained that he was held captive for two days and was tortured by Mr Tran [2]. Mr Brushek was able to escape [2]. Mr Brushek told Ms Calabro that Mr Tran enjoyed torturing people [2]. Mr Brushek also said that 'you [could not] call the police' in relation to Mr Tran because 'it would put [your] life and [your] family's life in danger' [2].

(b) Ms Calabro told the appellant's lawyer about her interaction with Mr Brushek and provided him with Mr Brushek's details [3].

(c) Ms Calabro had regular contact with the appellant's lawyers [4].

(d) On the first day of the trial, Ms Calabro met Mr Tran's mother and a friend of his mother. The friend's name was 'Linda'. (At [15], Ms Calabro clarified that this is Linda Dobson.) Ms Calabro had discussions with those women about Mr Tran. According to Ms Calabro, the mother told her that the appellant 'did not deserve this' [5]. According to Ms Calabro, the mother's friend told her that she knew that Mr Tran 'did horrible things' to the appellant and that the mother had witnessed Mr Tran 'slice a man's throat' [6] ‑ [7].

(e) Ms Calabro said she 'brought all this information' to the appellant's lawyers who told her 'to stay out of it and let them do their job' [8]. The lawyers told her that they were not going 'to bother with witnesses as they wanted to go down a different path' [8].

(f) Ms Calabro said that a friend of the appellant's had told her that two weeks before Mr Tran's death the appellant had arrived at the friend's house 'covered in his own blood' as a result of having been 'beaten up' by Mr Tran [9]. The friend also said that a couple of days later the appellant had 'tried to take his own life' [9].

(g) Ms Calabro said that she was 'advised' that before Mr Tran's death the appellant had 'packed his bags and was ready to leave' [10]. Mr Tran then 'turned up to [the appellant's] house'. Ms Calabro said that she gave this information to the appellant's lawyers and told them that 'the murder [could not] have been premeditated as [the appellant] was planning to leave and start his new life' [10].

(h) Ms Calabro said that she approached 'the lead detective to bring all [her] information to him' because the appellant's lawyers were 'ignoring [her]'. The 'lead detective' told her there was no evidence to suggest that anyone else, apart from the appellant, was at the appellant's house when Mr Tran was killed [11].

(i) Ms Calabro said that she again asked the appellant's lawyers 'to bring all these witnesses forward and again they said [that is] not the path they want to go down and that [the appellant] had agreed' [12].

(j) Ms Calabro said that, after the trial, she spoke to the appellant and asked him why he had decided not to 'bring any witnesses forward'. According to Ms Calabro, the appellant responded 'I don't know what you mean'. Ms Calabro said she told the appellant what his lawyers had told her. According to Ms Calabro, the appellant responded that his lawyers had advised him that Ms Calabro had only given him the name of one witness and they could not find him. Ms Calabro asserted that the lawyers had lied [13].

(k) Ms Calabro said that she and the appellant had told the appellant's lawyers 'to get the information on [Mr Tran's] bail and why he was charged'. However, according to Ms Calabro, 'the lawyers did not do this' and they did not 'look for Bonar Levison as a witness when asked' [14].

Ms Calabro does not specify in her affidavit when her conversations with Mr Brushek occurred.

1. Ms Calabro states in her statutory declaration made 8 July 2021, relevantly, that:

(a) The appellant's lawyer to whom Ms Calabro referred in her previous affidavit was Clayton Woodhouse [1]. Most of the conversations she had were with Mr Woodhouse except for one occasion when she spoke with both Mr Woodhouse and Mr Freitag at a café in the courthouse building [1].

(b) Any emails she sent were always sent to Mr Woodhouse [2].

(c) Ms Calabro had asked Mr Woodhouse to follow up on a witness named Bonar 'Raoul' [sic: Levison] and to follow up on screenshots of Mr Tran's Facebook page, including a Facebook post which depicted Mr Tran seeking to purchase guns [3]. Ms Calabro also asked Mr Woodhouse to follow up on a conversation on Facebook that Mr Tran had with a man named Blerim Kadrioski [4]. Ms Calabro also asked Mr Woodhouse 'to look into screenshots [she] sent him of [Mr Tran] threatening people on Facebook' and of other people telling Mr Tran that he had a 'death wish' [5]. She also asked Mr Woodhouse to look into a profile photograph on Mr Tran's 'personal page of what appears to be a torture kit' [5].

(d) Neither Mr Woodhouse nor Mr Freitag followed up on these things [6]. Ms Calabro was 'continuously told to let [the lawyers] do their job' [6].

Post-18 July 2022 hearing Application in an appeal filed 22 December 2022 for leave to adduce additional evidence to explain what the appellant had heard about Mr Tran's reputation

1. On 22 December 2022, the appellant filed an application in an appeal dated 21 December 2022 for leave to adduce additional evidence to explain what the appellant had heard about Mr Tran's reputation.
2. The application was accompanied by an affidavit sworn on 21 December 2022 by the appellant. The appellant states in his affidavit, relevantly, that the following people provided information to him about Mr Tran and his reputation:

(a) Monique Phatouros: In about February 2018, Ms Phatouros told the appellant that she had just broken up with her boyfriend, Mr Tran. Ms Phatouros told the appellant that Mr Tran was violent and sadistic, 'beat her up', shaved her head and possessed guns [3].

(b) An unnamed woman who lived on Scarborough Beach Road: At an unspecified time, the appellant went into the woman's room to ask four men who were inside to leave. One of the men told the appellant that he was going to get Mr Tran to shoot the appellant [4].

(c) Another unnamed woman: At an unspecified time, while the appellant was at this woman's house, she told Mr Tran on a video call that 'he was not a nice guy'. The woman told the appellant that Mr Tran was a 'bad person' who would 'stand over people' and 'bash' them [5].

(d) Tania Hill: In July 2018, Tania Hill told the appellant that she had once taken a woman named Annie-Marie Lofaro to 'meet' Mr Tran for several hours. When Tania Hill returned Ms Lofaro was huddled on the floor crying and begged Tania Hill to take her away from Mr Tran [6].

(e) Bonar Levison: On or about 5 July 2022 [sic: 2018], Mr Levison told the appellant that Mr Tran was a 'bad standover' and a 'dangerous person' [7].

Application in an appeal filed 22 December 2022 for leave to adduce additional evidence concerning criminal charges against Mr Tran

1. On 22 December 2022, the appellant filed a second application in an appeal dated 7 December 2022 for leave to adduce additional evidence concerning criminal charges against Mr Tran.
2. The application was accompanied by an affidavit sworn on 21 December 2022 by the appellant. The appellant states in his affidavit, relevantly, that evidence as to outstanding criminal charges against Mr Tran at the time of his death should be admitted as propensity evidence pursuant to s 31A of the Evidence Act.
3. The following documents were attached to the affidavit:

(a) 'Andrew Tran's Pending Charges', which consists of a letter dated 27 August 2021 from WA Police to the Supreme Court of Western Australia outlining the charges pending against Mr Tran at the time of his death. The pending charges comprised two counts of assault occasioning bodily harm that were linked to an alleged breach of bail; possession of a controlled weapon; possession of stolen or unlawfully obtained property; breach of a conditional release order; and aggravated assault occasioning bodily harm.

(b) 'Andrew Tran's Bail Conditions', which comprised Mr Tran's previous bail papers and undertakings.

(c) 'Witness Statements', which comprised various witness statements in relation to Mr Tran's prior criminal charges.

Application in an appeal filed 4 January 2023 for leave to adduce additional evidence as to why it was unreasonable for the appellant to call the police prior to killing Mr Tran

1. On 4 January 2023, the appellant filed an application in an appeal for leave to adduce additional evidence as to why it was unreasonable for him to call the police prior to killing Mr Tran.
2. The application was accompanied by an affidavit sworn on 4 January 2023 by the appellant. The appellant states in his affidavit, relevantly, that:

(a) The evidence that the appellant wishes to adduce will support his version of events [4]. The evidence that the appellant wishes to adduce will also deal with aspects of his grounds of appeal, namely that the verdict was unreasonable or cannot be supported [5].

(b) The appellant was heavily medicated from August 2018 to October 2021. He ceased all medication in October 2021 [10]. The medication affected his memories and feelings [12] ‑ [13]. By May 2022, he realised that he was 'in an appeal' and that he had 'a lot of work to do to prepare for the hearing of 18 July 2022' [14] ‑ [16]. The appellant was only just starting to 'wake up' after ceasing his medication and was starting to remember more and more things [24] ‑ [25].

1. The application was also accompanied by an additional affidavit sworn on 4 January 2023 by the appellant. This affidavit is lengthy and detailed. The appellant states in his affidavit, relevantly and in summary, that it was unreasonable for him to call the police on the morning of 8 July 2022 because:

(a) The appellant felt that the police 'would not stop' Mr Tran, despite his pending charges for 'burning and torturing people' [6].

(b) The appellant did not trust the police. This distrust stemmed from an incident when he was asked to take a breathalyser test whilst in his driveway [7]. The appellant had also previously been involved in a complex dispute involving his painting business, which resulted in him being charged with extortion [28].

(c) The appellant felt that if he had turned away to grab his telephone in order to call the police, he would have been killed by Mr Tran [177]. The appellant emphasised his belief that if he had let Mr Tran go, Mr Tran would have returned and killed him [404]. If the appellant had moved from his address, Mr Tran would have 'hunted [him] down and killed [him]' [405].

1. The application was also accompanied by various attachments relating to the appellant's prior painting business dispute.

Application in an appeal filed 27 March 2023 for leave to adduce additional evidence, namely the psychiatric report dated 7 March 2023 of Dr Pascu

1. On 27 March 2023, the appellant filed an application in an appeal dated 14 March 2023 for leave to adduce additional evidence, namely the psychiatric report dated 7 March 2023 of Dr Pascu.
2. The application was supported by an affidavit sworn on 16 March 2023 by the appellant in which the appellant claims that the psychiatric report: is fresh evidence as it was not available at the time of the trial; supports the further additional grounds of appeal for which the appellant has applied for leave; and may further support previous grounds already addressed in the appeal [3] ‑ [5].
3. Dr Pascu is a psychiatrist and is currently the Director of Clinical Services at North Metropolitan Health Service, Mental Health.
4. Dr Pascu interviewed the appellant on 5 November 2022 for approximately three hours by videolink. Dr Pascu also reviewed the appellant's medical history and records.
5. Dr Pascu's report, in summary, states:

(a) The appellant accepted that his actions contributed to the death of Mr Tran [7]. The appellant told Dr Pascu that when he knocked Mr Tran unconscious [14]:

[I]t felt like something was pushing me, it almost felt like God decided and the spirit of Jeremy [Ogilvie] was pushing me, putting in front of me images of what [Mr Tran] did to me so I went and got a knife from the kitchen and it almost felt like a hand pushing my hand into [Mr Tran]'s neck area so I kept stabbing him.

(b) The appellant told Dr Pascu of previous 'spiritual experiences', including when he was aged around 18 or 19 years and his cousin died. The appellant stated that Jeremy Ogilvie's 'Aboriginal spirit' was much stronger than his cousin's spirit and Jeremy would possess the appellant for 'hours at a time' [17]. In the days leading up to Mr Tran's death, Jeremy would 'shake' the appellant, and put images into the appellant's head. The appellant felt that Jeremy 'was like a protector' [19].

(c) The appellant told Dr Pascu that since October 2021 he had stopped taking medications, since March 2022 he had started experiencing regular emotions and memories, and since May 2022 he had begun experiencing happy thoughts. The appellant was seeing a mental health nurse twice a month and a psychiatrist every two or three months [20].

(d) The appellant said that he had been feeling well in the weeks prior to the psychiatric report. The appellant denied experiencing any psychotic symptoms and denied any active intent to harm himself [21].

(e) The appellant's past history includes diagnoses of and treatment for depression and narcissistic tendencies with grandiose beliefs [23] ‑ [34].

(f) The appellant began drinking alcohol at the age of 17 years, but has never had a problem with alcohol. The appellant tried cannabis twice at the age of 18 years to assist with his sleep. The appellant began using methylamphetamine at the age of 32 years and used methylamphetamine in the days leading up to Mr Tran's death. The appellant told Dr Pascu that he had not used alcohol or illicit substances since being in custody [35] ‑ [38].

(g) The appellant had a traumatic childhood due to violence between his parents [42]. The appellant has had a troubled relationship with his brother [45]. The appellant gets on well with his sister [46].

(h) The appellant has previously worked in hospitality jobs as well as serving in the military in Italy and joining the Army Reserve [49]. Whilst in Hakea Prison, the appellant worked in the library. Whilst in Acacia Prison, the appellant worked in the DVD section of the library [51].

(i) Throughout the interview, the appellant presented as a 'chatty, pleasant man'. There was no agitation, distress or aggressive outbursts [52]. The appellant had insight into his circumstances and his judgment was intact [54].

(j) Dr Pascu noted that the video record of the police interviews confirms that Mr Calabro's mental state was stable with no evidence of any psychotic or affective symptoms [56]. The appellant did not describe experiences consistent with a psychotic illness at the time of Mr Tran's death during his interview with the police and his behaviour did not indicate that he might have been distracted or affected by psychotic symptoms [58].

(k) In Dr Pascu's opinion, the appellant likely suffers from bipolar 2 mood disorder on the background of mixed personality disorder with borderline (emotionally unstable) and narcissistic traits and polysubstance abuse, prescribed and illicit [67]. Dr Pascu believes that the psychotic symptoms described by the appellant at the time of Mr Tran's death are more likely methylamphetamine related than attributable to an underlying psychotic illness [67].

(l) Dr Pascu is of the view, regarding the appellant's offence of murdering Mr Tran, that the offence 'occurred more likely than not in [the] context of [a] drug related psychotic state on the background of a bipolar 2 mood disorder, mixed personality disorder and polysubstance abuse' [72]. Dr Pascu said that, in her opinion, the appellant 'does not suffer from a major psychotic disorder from a psychiatric point of view' [72]. Bipolar 2 mood disorders do not cause psychosis [72]. Accordingly, an insanity defence cannot be supported [72]. Dr Pascu is also of the view that, in relation to the criteria in s 27 of the Code, the appellant was not deprived of any of the relevant capacities [73]. Since the end of 2021, the appellant has not been on any treatment for his mood disorder [74]. His mental state has remained stable while abstinent from illicit substances [74]. The appellant was fit to stand trial with assistance from his counsel [75].

Application in an appeal filed 27 March 2023 for leave to adduce additional evidence, namely the report dated 10 September 2019 of Professor Joyce

1. On 27 March 2023, the appellant filed a second application in an appeal dated 14 March 2023 for leave to adduce additional evidence, namely the report of Professor Joyce dated 10 September 2019.
2. The application was supported by an affidavit sworn by the appellant on 16 March 2023 in which the appellant claims that the report: was available at the time of the trial and referred to by counsel but was not tendered in evidence; supports the further additional grounds for which the appellant has applied for leave; and may further support previous grounds already addressed in the appeal [3] ‑ [5].
3. Professor Joyce is a physician specialising in clinical pharmacology and toxicology. Prior to the trial Professor Joyce was requested by the State to prepare a report which outlined the effect of methylamphetamine, cannabis and other drug use on Mr Calabro and Mr Tran [3] ‑ [4].
4. Professor Joyce, in preparing the report, relied upon the State's statement of material facts, the psychiatric report dated 29 November 2018 of Dr Mircea Schineanu, various witness statements, the ChemCentre report on the appellant, the ChemCentre report on Mr Tran, and other sources and references as cited [1].
5. The findings in Professor Joyce's report, in summary, are as follows:

(a) None of the witness statements describe the appellant in a way which clearly points towards a state of drug intoxication on the date of Mr Tran's death. The appellant was not intoxicated to the point that it was vividly apparent to others [6].

(b) Dr Schineanu's report at the time of the appellant's admission to Graylands Hospital diagnoses the appellant with bipolar disorder; manic episode with psychotic features; mental and behavioural disturbances due to psychoactive substance use (methylamphetamine); and steroid use [10].

(c) The appellant's toxicology specimens were collected at approximately 4.00 am on 9 July 2018 and show the appellant as having 0.03 mg/L of methylamphetamine in his blood and less than 0.01 mg/L of amphetamine [14]. Because methylamphetamine has a half-life of between about 8 and 18 hours, the appellant's actual concentration levels of methylamphetamine would have been around 0.06 to 0.09 mg/L [17]. The appellant was not affected by cannabis at the time of Mr Tran's death [18].

(d) Mr Tran's post‑mortem toxicology report shows a methylamphetamine reading of 0.19 mg/L, an amphetamine reading of 0.02 mg/L, and a tetrahydrocannabinol reading of 16 μg/L [38].

(e) Professor Joyce's report discussed three consequences of methylamphetamine that may have relevance in relation to Mr Tran's death. First, Professor Joyce concluded that the appellant was not in a state of acute amphetamine intoxication at the time of Mr Tran's death. Secondly, Professor Joyce concluded that methylamphetamine may have had a general detrimental effect on the appellant's other psychiatric illnesses, such as his bipolar disorder. Finally, Professor Joyce concluded that the appellant was not affected by amphetamine-induced delusional disorder at the time of Mr Tran's death [20].

(f) Professor Joyce's report also discussed the consequences of tetrahydrocannabinol, which is the principal intoxicant of natural cannabis [49]. Professor Joyce concluded that there was no reason to suspect that co‑intoxication with cannabis either increased the likelihood of Mr Tran entering into conflict or impacted upon Mr Tran's chances of surviving a stabbing [51].

Summary of evidence at the appeal hearing on 18 July 2022

1. Luisa Calabro gave evidence at the appeal hearing on 18 July 2022 regarding her affidavit sworn on 17 May 2021 and her statutory declaration declared on 8 July 2021.
2. Ms Calabro's evidence‑in‑chief was to the following effect:

(a) Ms Calabro is the appellant's sister. Ms Calabro was in regular contact with the appellant at the time of his incarceration in July 2018 (ts 120).

(b) Ms Calabro knew that the appellant was represented by Clayton Woodhouse and Simon Freitag SC. The appellant had given Ms Calabro authorisation to 'deal with' Mr Woodhouse. Ms Calabro would contact Mr Woodhouse on a weekly basis, either via telephone or email (ts 120 ‑ 121).

(c) The appellant told Ms Calabro that he wanted Joel Brushek and Bonar Levison to be called as witnesses at his trial (ts 121).

(d) Ms Calabro spoke with Mr Brushek, who advised her of a previous encounter with Mr Tran. Mr Brushek told Ms Calabro that he had been 'held captive' by Mr Tran for a period of approximately two days. Mr Brushek told Ms Calabro that the incident was not reported to police (ts 122 ‑ 123).

(e) Ms Calabro provided the contact details for Mr Brushek and Mr Levison to Mr Woodhouse (ts 123).

(f) Ms Calabro met Mr Tran's mother and a lady named 'Linda' on the first day of the appellant's trial. 'Linda' told Ms Calabro that Mr Tran would often raid drug houses. Mr Tran wanted to recruit the appellant due to the appellant's physical strength and military background. Mr Tran was frustrated because the appellant would not 'help him out' (ts 125 ‑ 126).

(g) Ms Calabro told the appellant's lawyers 'everything'. The majority of Ms Calabro's communications were with Mr Woodhouse. Ms Calabro had very little contact with Mr Freitag (ts 127).

(h) Ms Calabro questioned Mr Woodhouse during and at the conclusion of the trial as to why no defence witnesses were called. Mr Woodhouse told Ms Calabro that they 'wanted to go down a different path' (ts 127).

(i) Ms Calabro also spoke to a friend of the appellant's named 'Damon'. Damon told Ms Calabro that two weeks prior to Mr Tran's death, the appellant had arrived at Damon's house after being beaten by Mr Tran. According to Damon, the appellant subsequently attempted to take his own life. Ms Calabro said that these events may have occurred in the opposite order (ts 127 ‑ 128).

1. During cross‑examination, Ms Calabro gave the following evidence:

(a) The full name of the appellant's friend to whom Ms Calabro spoke is Damon Chav (ts 129).

(b) Ms Calabro acknowledged that the events to which she referred earlier in her evidence may have occurred in the reverse order. That is, the appellant may have attempted to take his own life two weeks prior to Mr Tran's death and the appellant may have arrived at Mr Chav's house, after being beaten by Mr Tran, approximately one week prior to Mr Tran's death (ts 129).

(c) Ms Calabro could not accurately recall the events and was relying on what she had said in her affidavit. Ms Calabro insisted, however, that she did recall Mr Chav saying that the appellant had tried to hurt himself and that, on a subsequent occasion, the appellant had arrived at Mr Chav's house covered in blood (ts 130).

1. Clayton Woodhouse is a lawyer. Mr Woodhouse was the appellant's junior counsel and instructing solicitor at trial. Mr Woodhouse gave evidence at the appeal hearing on 18 July 2022 and was cross‑examined by the appellant. The relevant points to emerge were:

(a) Mr Woodhouse was provided with emails containing various screenshots said to have been taken from Mr Tran's Facebook profile. Mr Woodhouse shared these screenshots with the appellant and Mr Freitag (ts 132).

(b) The appellant put several photographs to Mr Woodhouse during the appeal hearing. Mr Woodhouse said that, while the photographs were similar to the screenshots taken from Mr Tran's Facebook profile, he did not recognise them (ts 134).

(c) Ms Calabro had provided Mr Woodhouse with approximately three or four names of potential witnesses for the appellant's trial. To the best of Mr Woodhouse's recollection, all of his communications with Ms Calabro were via his personal mobile telephone (ts 136).

(d) To the best of his recollection, Mr Woodhouse did not have any contact details for the potential witnesses. Mr Woodhouse advised the appellant that it would not be necessary to 'chase these people' because the evidence that the defence wished to adduce would be adduced adequately from prosecution witnesses. The appellant was satisfied with this decision (ts 136 - 137).

(e) Mr Woodhouse recalled discussing the prosecution witness statements with the appellant during prison visits and formulating a case theory with the appellant (ts 138).

(f) The appellant repeatedly told Mr Woodhouse that he was solely responsible for Mr Tran's death (ts 139). Mr Woodhouse therefore could not present an alternative scenario at the appellant's trial (ts 140).

(g) Mr Tran's mother approached Mr Woodhouse on one occasion during the trial. He directed her to the investigating officers. This was the only time that Mr Woodhouse communicated with Mr Tran's mother. Mr Woodhouse does not recall having any communication with a woman named Linda Dobson (ts 140 ‑ 141).

(h) Mr Woodhouse was not acting for the appellant while the appellant was a patient at Graylands Hospital. Mr Woodhouse was aware of a document written by the appellant which was placed on the initial file (when Thomas Percy QC was supervising the matter). However, Mr Woodhouse did not recall an explicit list of names of potential witnesses and said that any names he received were provided to him in a 'piecemeal fashion' (ts 146).

(i) Mr Woodhouse denied ever receiving any explicit instructions from the appellant to find and interview the witnesses (ts 146 ‑ 147). Mr Woodhouse emphasised that he and Mr Freitag explained to the appellant that the prosecution witnesses would give the defence 'more than enough' and that the appellant was content with this approach (ts 147).

1. The appellant also gave evidence at the appeal hearing on 18 July 2022 and was cross‑examined.
2. The appellant gave evidence to the following effect:

(a) The appellant instructed his lawyers to call Joel Brushek, Bonar Levison, Callum Toms, an individual named 'Dryen' and an individual named 'Rue' as defence witnesses at the appellant's trial. The appellant provided these instructions to one of his lawyers on a piece of paper he had at Graylands Hospital (ts 148 ‑ 149).

(b) The appellant was heavily medicated during his time at Graylands Hospital and was consequently reliant upon his sister, Ms Calabro, to manage his legal affairs (ts 149 ‑ 150).

(c) Mr Woodhouse told the appellant that he was not going to pursue the defence witnesses because it was 'too difficult to get in contact with them' (ts 150).

(d) Mr Freitag told the appellant that it was unnecessary to call witnesses because the prosecution case and the appellant's own evidence would establish that Mr Tran was a violent person (ts 151).

(e) The appellant gave instructions to Mr Woodhouse to obtain details of outstanding charges against Mr Tran and to adduce that evidence at trial. These instructions were not followed (ts 152).

1. During cross‑examination, the appellant gave the following evidence:

(a) The appellant recalled only one occasion on which he and Mr Woodhouse discussed the issue of defence witnesses. This was approximately four to five months after the appellant had provided the names of the witnesses on the piece of paper at Graylands Hospital (ts 154).

(b) Mr Woodhouse explained to the appellant first that it was too difficult to get in contact with the witnesses, and later that Mr Freitag had suggested that evidence adduced by the prosecution witnesses would be sufficient for the defence case (ts 154).

(c) Upon receiving this advice, the appellant did not tell Mr Woodhouse that he still wanted Mr Woodhouse to call the witnesses (ts 154).

(d) The appellant wanted Mr Woodhouse to lead evidence of the outstanding charges against Mr Tran. Neither Mr Woodhouse nor Mr Freitag provided the appellant with an explanation as to why that evidence was not led at the trial (ts 155).

(e) The appellant does not recall the detail of all the conversations that he had with Mr Woodhouse and Mr Freitag (ts 155).

Legal principles applicable to the introduction of additional evidence on a criminal appeal

1. In Clarke v The State of Western Australia,[1] Buss P stated the legal principles applicable to the introduction of additional evidence on a criminal appeal, as follows:

Part 3 of the Criminal Appeals Act 2004 (WA) is headed 'Appeals from superior courts' and comprises s 22 to s 35A.

Part 3 creates rights of appeal in relation to criminal proceedings heard and determined in the General Division of the Supreme Court or in the District Court. Rights of appeal against conviction, sentence and any order made as a result of a conviction are available to a person (the offender) who has been convicted of an offence. It is unnecessary to refer to other rights of appeal created by pt 3.

Part 4 of the Criminal Appeals Act is headed 'Provisions applicable to any appeal' and comprises s 36 to s 45.

Section 39(1) provides that an appeal court must decide an appeal on the evidence and material that were before the lower court. By s 39(3), however, s 39(1) does not affect the power of an appeal court to admit evidence pursuant to s 40.

Section 40(1) provides, relevantly:

For the purposes of dealing with an appeal, an appeal court may do any or all of the following -

(a) order the production of any record or thing, whether or not an exhibit, that is or may be relevant to the appeal;

(b) order a witness who would have been compellable at the trial in the lower court, whether or not called at the trial, to attend and be examined before the appeal court;

(d) subject to the Evidence Act 1906 section 9, admit the evidence of a witness, including a convicted appellant, who is a competent but not compellable witness;

(e) admit any other evidence.

The discretionary power conferred on this court by s 40(1)(e) to admit 'any other evidence', for the purposes of dealing with an appeal, is not expressly limited or confined. However, the subject matter, scope and purpose of the relevant provisions in the Criminal Appeals Act, and the issues to be resolved in each appeal, will indicate those considerations which are relevant or irrelevant to the exercise of the power. See, generally, CDJ v VAJ [1998] HCA 67; (1998) 197 CLR 172 [108] (McHugh, Gummow & Callinan JJ). The power in s 40(1)(e) must be exercised, in the context of an appeal against conviction pursuant to s 30, having regard to, amongst other things, the relevance of the evidence sought to be adduced in evaluating whether, within s 30(3), this court is of the opinion that the verdict of guilty on which the conviction is based should be set aside because, having regard to the evidence, it is unreasonable or cannot be supported (s 30(3)(a)); or the conviction should be set aside because of a wrong decision on a question of law by the judge (s 30(3)(b)); or there was a miscarriage of justice (s 30(3)(c)).

At common law, there is a well‑established distinction between fresh evidence, on the one hand, and new evidence, on the other. Fresh evidence is evidence that either did not exist as at the date of the trial or could not, with reasonable diligence, have been obtained or discovered for use at the trial. New evidence is evidence that could, with reasonable diligence, have been obtained or discovered for use at the trial. See Beamish v The Queen [2005] WASCA 62 [9] (Steytler, Wheeler & McLure JJ).

The courts have traditionally treated appeals (including appeals against criminal convictions) based on fresh evidence differently from appeals (including appeals against criminal convictions) based on new evidence.

Where an accused has been convicted, an appellate court will not allow an appeal, on the basis of new as distinct from fresh evidence, unless the new evidence establishes that the appellant is innocent or the new evidence raises such a doubt that the court is satisfied that the appellant should not have been convicted. See Lawless v The Queen [1979] HCA 49; (1979) 142 CLR 659, 675 ‑ 676 (Mason J); DPJB v The State of Western Australia [2010] WASCA 12 [66] (Owen JA; McLure P relevantly agreeing).

Where an accused has been convicted, an appellate court will not allow an appeal, on the basis of fresh as distinct from new evidence, unless there is a 'significant possibility' that, on the basis of all of the admissible evidence (that is, the fresh evidence and the evidence given at trial), a jury, acting reasonably, would have acquitted the appellant. See Gallagher v The Queen [1986] HCA 26; (1986) 160 CLR 392, 399 (Gibbs CJ), 402 (Mason & Deane JJ); Mickelberg v The Queen [1989] HCA 35; (1989) 167 CLR 259, 273 (Mason CJ), 301 ‑ 302 (Toohey & Gaudron JJ). The fresh evidence must be relevant. It must also be credible in the sense that a reasonable jury could accept it as true (but it is not necessary that the appellate court should think it likely that a reasonable jury would believe it) or be sufficiently cogent and plausible to lead a reasonable jury to have a reasonable doubt as to the appellant's guilt (although the reasonable jury might not necessarily prefer it to other evidence with which it is inconsistent). See Lawless (676 ‑ 677) (Mason J); Gallagher (397) (Gibbs CJ), (401 ‑ 403) (Mason & Deane JJ), (410) (Brennan J); Mickelberg (302) (Toohey & Gaudron JJ).

Ordinarily, there will be no miscarriage of justice at a criminal trial unless:

(a) in the case of an appeal against conviction based on new evidence, the traditional test for allowing an appeal against conviction, on the basis of new evidence, has been satisfied; and

(b) in the case of an appeal against conviction based on fresh evidence, the traditional test for allowing an appeal against conviction, on the basis of fresh evidence, has been satisfied.

Although it is highly unlikely that Parliament intended that s 40(1)(e) should be construed as obliterating the distinction developed in the common law courts between the admission of fresh evidence and the admission of new evidence on appeal, the power in s 40(1)(e) is broader than the principles applicable in common law proceedings. See, generally, CDJ [108], [111].

As I have indicated, an appellant's prospects of establishing that a miscarriage of justice, within s 30(3)(c), has occurred will be relevant in determining whether the court should exercise its power to admit additional evidence (whether new or fresh) in the appeal pursuant to s 40(1)(e).

In Rinaldi v The State of Western Australia [2007] WASCA 53, Steytler P (Wheeler & Pullin JJA agreeing) said, in relation to s 40(1)(a), (b), (d) and (e):

While these provisions afford the Court a discretion, which is not expressed to be limited in any way, to do any of the things provided for, it is most improbable that the legislature intended that they 'should be construed in a way that would have the practical effect of obliterating the distinction between original and appellate jurisdiction': CDJ v VAJ (1998) 197 CLR 172 at [111] per McHugh, Gummow and Callinan JJ (dealing with the provisions of s 93A(2) of the Family Law Act 1975 (Cth)) and see also De La Espriella-Velasco [[2006] WASCA 31; [2006] WASCA 31; (2006) 31 WAR 291] at [150] per Pullin JA. The common law principles have, of course, been developed over many years in order to meet the ends of justice and the considerations giving rise to them will plainly be material to the exercise of the statutory discretion, which must be exercised judicially. While the common law principles touching upon the distinction between new and fresh evidence are not necessarily determinative of the manner of exercise of the statutory discretion, the considerations giving rise to those principles will ordinarily be weighty, so much so that it will be a rare case in which an exercise of the statutory discretion produces a different outcome to that produced by application of the common law principles [84].

As Steytler P explained in Rinaldi, although the common law principles concerning new and fresh evidence are not necessarily determinative of the manner in which the discretion conferred by s 40(1)(e) will be exercised, those principles will, ordinarily, be weighty, and it will be a rare case in which an exercise of the statutory discretion produces an outcome different from that produced by the application of the common law principles. Steytler P's observations in Rinaldi have been referred to with approval in numerous decisions of this court. See, for example, DPJB [64]; Cramphorn v Bailey [2014] WASCA 60 [61] (Mazza JA; McLure P & Buss JA agreeing).

In my opinion, in the case of an appeal against conviction based on new or fresh evidence, the common law principles concerning new and fresh evidence are relevant to the exercise of the discretion under s 40(1)(e) and the determination of whether there was a miscarriage of justice at the trial within s 30(3)(c), but the exercise of the discretion and the determination of whether there was a miscarriage of justice do not involve the rigid application of those principles. As McHugh, Gummow and Callinan JJ noted in CDJ, in the context of civil proceedings, the common law courts have always reserved to themselves 'an exceptional power to set aside a verdict on the ground of further evidence where the interests of justice require it' [105]. The power under s 40(1)(e) is to be exercised, and whether there was a miscarriage of justice within s 30(3)(c) is to be determined, having regard to, amongst other relevant considerations, the overarching principle of the proper functioning and the protection of the integrity of the criminal justice system in the particular case. The interests of justice in that context include not only the interests of an accused who has been convicted, but also the public interest as represented by the State.

See also Huggins v The State of Western Australia;[2] Rankins v The State of Western Australia;[3] Leahy v The State of Western Australia.[4]

Objections at the appeal hearing on 18 July 2022

1. Counsel for the State made several objections to the affidavit of Ms Calabro sworn on 17 May 2021, the statutory declaration of Ms Calabro declared on 8 July 2021 and the oral evidence of Ms Calabro at the appeal hearing.
2. Counsel for the State objected to Ms Calabro giving evidence about the appellant's mental state (ts 105 ‑ 106).
3. Counsel for the State also objected to all of the evidence of a hearsay kind contained in Ms Calabro's affidavit (including pars 2, 4, 5 and 6), statutory declaration and oral evidence. Counsel conceded that the evidence could be admissible as evidence of what the appellant's lawyers were told. It could not, however, be admissible as proof of the truth of what was said (ts 155 ‑ 158).
4. Counsel for the State also made objections to the affidavit of Mr Levison, as follows (ts 159):

(a) par 12, on the basis of opinion;

(b) par 63, on the basis of hearsay; and

(c) pars 64 to 75, on the basis of relevance or opinion.

1. The State's objections to the evidence of Ms Calabro and the evidence of Mr Levison are well made. Ms Calabro's evidence about the appellant's mental state is inadmissible opinion evidence and should not be received. Ms Calabro's hearsay evidence is inadmissible and should not be received, subject to the qualification that Ms Calabro's evidence as to what was communicated to Mr Woodhouse and Mr Freitag should be received but solely on the basis that the evidence is relevant to what the appellant's lawyers were told and is not evidence of the truth of the contents of what was conveyed to them. Parts of Mr Levison's affidavit are inadmissible. In particular, the second sentence of par 12 should be struck out on the basis that it contains inadmissible opinion evidence; par 63 should be struck out in that it is hearsay; and par 64 to par 75 should be struck out on the basis that the evidence is irrelevant, hearsay or involves inadmissible opinion.

Objections at the appeal hearing on 19 April 2023

(a) the appellant's application in an appeal dated 9 March 2023 to amend his grounds of appeal should be dismissed because the proposed additional grounds are not reasonably arguable;

(b) the appellant's application in an appeal dated 14 March 2023 for leave to adduce Dr Pascu's report should be dismissed because the report does not support any proposed ground of appeal; and

(c) the appellant's application in an appeal dated 14 March 2023 for leave to adduce Professor Joyce's report should be dismissed because Professor Joyce gave evidence at the trial that was consistent with his report and consequently it was unnecessary for the report to be adduced as additional evidence in the appeal.

1. In our opinion, a decision on whether to grant the appellant leave to amend his grounds of appeal, as sought in his application in an appeal dated 9 March 2023, depends upon the merits of each of the proposed grounds. We will defer a decision on the question of leave to amend until we have considered the merits of the proposed grounds.
2. Similarly, in our opinion, whether the appellant should be granted leave to adduce Dr Pascu's report as additional evidence in the appeal depends upon whether her evidence supports any of the proposed grounds of appeal. We will defer a decision on the application until we have considered Dr Pascu's report in the context of the proposed grounds.
3. Professor Joyce's report was prepared, pursuant to instructions from the State, before the trial. A copy of Professor Joyce's report was served on the appellant's lawyers before the trial. Professor Joyce gave evidence at the trial but his report was not tendered. Professor Joyce's evidence at the trial was consistent with his report. In the circumstances, it is unnecessary for the report to be adduced as additional evidence in the appeal. Consequently, the appellant's application in an appeal dated 14 March 2023 in relation to Professor Joyce's report should be dismissed.

The credibility and reliability of the witnesses who gave evidence before the court

1. In our opinion, Mr Woodhouse was an honest witness who used his best endeavours to assist the court. We find that Mr Woodhouse's account of his conversations and interactions with each of the appellant and Ms Calabro was in all material respects accurate and reliable. We prefer the evidence of Mr Woodhouse to the evidence of the appellant and Ms Calabro where the evidence of Mr Woodhouse was different from or inconsistent with the appellant's evidence or Ms Calabro's evidence in material respects.
2. In particular, we are satisfied, on the basis of Mr Woodhouse's evidence, that:

(a) The appellant authorised Mr Woodhouse to discuss his case with Ms Calabro. It was Mr Woodhouse's practice to convey the nature and content of all discussions, communications and correspondence with Ms Calabro to the appellant and Mr Freitag.

(b) The appellant instructed Mr Woodhouse that Mr Tran was an extremely violent individual with a significant criminal history, and that the appellant had in essence acted in self‑defence when he killed him.

(c) Ms Calabro provided Mr Woodhouse with approximately three or four names of potential witnesses for the appellant's trial. Mr Woodhouse gave the names to the appellant as and when he received them. However, Mr Woodhouse did not receive express instructions from the appellant or Ms Calabro to find and interview the witnesses. Mr Freitag and Mr Woodhouse advised the appellant before and during the trial that the prosecution witnesses would give the defence 'more than enough' in relation to Mr Tran's propensity for violence and criminal history. The appellant accepted that advice from Mr Freitag and Mr Woodhouse.

(d) Ms Calabro provided Mr Woodhouse with three or four screenshots from Mr Tran's Facebook page. The screenshots were 'somewhat vague' and it was unclear whether they were in fact linked to Mr Tran. Mr Woodhouse shared the screenshots with the appellant and Mr Freitag as soon as practicable after he received them.

(e) Before and during the trial the issue of the Facebook screenshots, the names of the potential defence witnesses provided by Ms Calabro, the overall issue of witnesses and the evidence to be called or used by the defence at trial was discussed on numerous occasions between Mr Woodhouse, the appellant and Mr Freitag. Ultimately, it was decided between Mr Woodhouse, the appellant and Mr Freitag that there was significant evidence as part of the State's case of Mr Tran's character and propensity for violence. That evidence could be and was indeed adduced by or through the State's witnesses at trial. Consequently, it was agreed that the Facebook screenshots would not be used at the trial and no defence witnesses (apart from the appellant) would be called. The appellant agreed to that course of action and did not, at any stage, raise any concerns or reservations about it.

(f) Before and during the trial the appellant's 'firm, consistent and unequivocal' instructions to Mr Woodhouse were at all times that the appellant had alone killed Mr Tran and that no one else was present when he did so.

(g) Mr Woodhouse did not, at any stage, tell Ms Calabro to 'stay out of it' or 'let me do my job' or words to that effect.

1. We accept that the appellant may have attempted to take his own life about two weeks before Mr Tran's death. However, we do not accept that the appellant attempted to take his own life after being assaulted by Mr Tran.
2. We do not accept the appellant's evidence that:

(a) Mr Woodhouse told the appellant that he was not going to pursue the defence witnesses because it was 'too difficult to get in contact with them'.

(b) The appellant gave instructions to Mr Woodhouse to obtain details of outstanding charges against Mr Tran and to adduce that evidence at trial.

1. Ground 1 alleges, in essence, that police were negligent in handling the appellant whilst he was under arrest. The appellant makes two complaints. First, the appellant asserts that police did not convey him to Graylands Hospital immediately nor provide a forensic nurse, doctor or psychiatrist immediately for the purpose of examining and assessing him. Secondly, the appellant asserts that police did not give him reasonable access to a lawyer as he had requested on multiple occasions.
2. Section 30(2) of the Criminal Appeals Act 2004 (WA) provides that, unless under s 30(3) this court allows an appeal against conviction, this court must dismiss the appeal.
3. By s 30(3), this court must allow an appeal against conviction if in its opinion:

(a) the verdict of guilty on which the conviction is based should be set aside because, having regard to the evidence, it is unreasonable or cannot be supported; or

(b) the conviction should be set aside because of a wrong decision on a question of law by the judge; or

(c) there was a miscarriage of justice.

1. Ground 1 is not within par (a), par (b) or par (c) of s 30(3). Consequently, ground 1 is not a competent ground of appeal.
2. In any event, ground 1 and the appellant's submissions in support of the ground relate to alleged matters occurring well before the commencement of the trial. It is not apparent that any of those alleged matters affected the admissibility at the trial of any admissions against interest made by the appellant in his first and second police interviews or in his electronically recorded conversations with friends and family members while he was in custody awaiting trial.
3. Dr Pascu said in her report dated 7 March 2023 that in her view the electronic recordings of the first and second police interviews confirm that at that time the appellant's mental state was stable with no evidence of any psychotic or affective symptoms. The appellant was reasonably cooperative during the interviews. He appeared to be more in control of the interview process than the two detectives. The appellant's behaviour during the interviews did not indicate that he might have been distracted or affected by active psychotic or affective symptoms at that time. Dr Pascu's observations accord with our own impressions of the appellant upon watching the electronic recordings of the first and second police interviews.
4. Towards the beginning of the first police interview on 8 July 2018 at 10.23 pm, and before the appellant had made any relevant admissions, the following exchange occurred between one of the interviewing police officers and the appellant (3 ‑ 4):

S/CON CARBONE: Dom, are you in any way affected by alcohol at this time?

CALABRO: No.

S/CON CARBONE: Are you in any way affected by any drugs or medication at this time?

CALABRO : No .

S/CON CARBONE: Are you suffering from any illnesses or any injuries at the moment?

CALABRO: Ah, no.

S/CON CARBONE: No? Dom, with respect of, um, why you're here, do you agree that about 3:35 P‑M today you were arrested at the McDonald's in Mirrabooka?

CALABRO: Yes.

S/CON CARBONE: You were advised that you were·under arrest on suspicion of murder - - -

CALABRO: Yes.

S/CON CARBONE: And then you were brought back to here to the Mirrabooka Police Station.

CALABRO: Yes.

S/CON CARBONE: I understand the officers advised you of some rights at the time.

CALABRO: Yes.

S/CON CARBONE: Advised you when you're back here that some of those rights were suspended.

CALABRO: Yes.

CALABRO: Um, that medical, lawyers and friends and, um, to, that I have the right to, um, if I didn't want to say, ah, yeah, just, yeah, if I, as long as I can say, that I can choose not to say it and if I do, it can be used against me.

S/CON CARBONE: That's pretty much it, Dom. Yeah, o-, obviously in relation to your rights you do have the right obviously, the general rights that every person has in our custody, that they have the right to medical treatment, to medical, um, to protection from media, all that kind of stuff. Obviously being an arrested suspect though you have additional rights and they are the rights that you can speak with a lawyer, seek some legal representation if you wish to do so. You also have the right to speak with family and friend members, let them know your whereabouts and all that kind of stuff.

CALABRO: Mmm.

S/CON CARBONE: Okay, so they, they are your rights. They're ongoing throughout the entire time that you are with us. Um, we have exercised some of the rights in respect of we have been to hospital earlier in the evening. Obviously we don't have to get into that unless you really want to at the moment.

CALABRO: No.

S/CON CARBONE: But we've obviously been to h-, hospital, um, and got back from there probably about 9:00, 9:30 back here, okay?

CALABRO: Okay.

S/CON CARBONE: Um, as you did say, um, Dom, one of the other parts of your rights is that you're not obliged to say anything to us unless you wish to do so. Okay, we obviously intend to ask you some questions today. You don't have to answer them unless, unless you want to. Anything you do say to us gets recorded and can get used in evidence in court, okay. You can obviously answer some of my questions and also you can answer none of my questions. Do you understand that?

CALABRO: Yes.

S/CON CARBONE: Um, you have kind of already explained it to me but if you could humour me and just explain to me what you understand that to mean. Can you unders-, can you explain that back to me?

CALABRO: Oh, that, um, you are going to ask me some questions.

S/CON CARBONE: Yep.

CALABRO: I can choose to answer some or none.

S/CON CARBONE: Yep.

CALABRO: And if I do answer any they can be used against me.

S/CON CARBONE: And that they're being recorded at the moment.

CALABRO: And that they're being recorded at the moment.

1. Defence counsel did not object to the admissibility at the trial of any admissions against interest made by the appellant in his first and second police interviews or in the electronically recorded conversations on the basis that the alleged matters complained of in ground 1 rendered the admissions against interest involuntary or required the trial judge to exclude them in the exercise of discretion because, for example, the admissions were improperly or unfairly obtained.
2. The material before this court does not indicate that there was a reasonably arguable case for objection to the admissibility at the trial of any of the admissions against interest having regard to the alleged matters complained of in ground 1.
3. Ground 1 is without merit. Leave to appeal on ground 1 should therefore be refused.

1. Ground 2 alleges, in essence, that the appellant's defence counsel failed to follow instructions and consequently a miscarriage of justice occurred at the trial.
2. In McMahon v The State of Western Australia,[5] McLure P summarised the law relating to a ground of appeal which alleges a miscarriage of justice by reason of defence counsel's conduct of the defence case, as follows:

The appellant has to demonstrate that the conduct of his counsel caused a miscarriage of justice, a task which constitutes a heavy burden: TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124 [74] (McHugh J). That is a consequence of the adversarial nature of a criminal trial and the role and function of counsel. Ordinarily, an accused is bound by the way the trial is conducted by counsel, regardless of whether that was in accordance with the wishes of the client, and it is not a ground for setting aside a conviction that decisions made by counsel were made without, or contrary to, instructions, or involved errors of judgment or even negligence: TKWJ [74], [79] (McHugh J); R v Birks (1990) 19 NSWLR 677, 685 (Gleeson CJ).

In this context, miscarriage of justice has two aspects, process and outcome. If the conduct of counsel has deprived the accused of a fair trial according to law, that will give rise to a miscarriage of justice without regard to whether counsel's conduct might have affected the outcome: TKWJ [76] (McHugh J); Nudd v The Queen [2006] HCA 9 [3] ‑ [7] (Gleeson CJ). This corresponds with that limb of the proviso where there is a serious breach of the pre‑suppositions of a trial: Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300 [46]; Wilde v The Queen [1988] HCA 6; (1988) 164 CLR 365, 373. A complete failure to cross‑examine a complainant or a complete failure to address the jury may result in an unfair trial: TKWJ [76]. So too may wrong advice that an accused is not entitled to give evidence: Nudd [17].

In the majority of cases, irregular conduct of counsel will not deprive the appellant of a fair trial. In such circumstances, the ultimate question of whether a miscarriage of justice has occurred raises two issues. First, did counsel's conduct result in a material irregularity in the trial. Secondly, is there a significant possibility that the irregularity affected the outcome: TKWJ [79] (McHugh J); Ali v The Queen [2005] HCA 8; (2005) 79 ALJR 662 [18] (Hayne J).

The test of whether there is a material irregularity is objective: TKWJ [17], [27] ‑ [28], [107]. Ordinarily, it is difficult to establish a material irregularity when the alleged error of counsel concerned forensic choices upon which competent counsel could have differing views: TKWJ [81]. However, if the error of counsel plainly affected the result of the trial, there will be a miscarriage even though the error involved a forensic choice or judgment. Where the error involves the failure to adduce evidence, there are parallels with the test for the admission of new or fresh evidence: TKWJ [32] (Gaudron J).

1. In Colley v The State of Western Australia,[6] McLure P referred to the extract which we have reproduced from her Honour's reasons in McMahon and then said:

The appellant's claims in this case fall within the 'process' category. That is, the appellant claims he was deprived of a fair trial according to law.

As is clear from the use of the word 'ordinarily' in the first paragraph of the extract, it is a general rule that an accused is bound by the way a trial is conducted by counsel. In particular, not all decisions made by counsel contrary to instructions will bind the accused. The point is made clearly by Gleeson CJ in Nudd v The Queen:

A cardinal principle of such litigation is that, subject to carefully controlled qualifications, parties are bound by the conduct of their counsel, who exercise a wide discretion in deciding what issues to contest, what witnesses to call, what evidence to lead or to seek to have excluded, and what lines of argument to pursue. The law does not pursue that principle at all costs. It recognises the possibility that justice may demand exceptions [9]. (emphasis added)

For example if, as the appellant says in this case, he instructed trial counsel not to defend the charge on the basis of self‑defence because he (the appellant) did not at any stage hit the deceased, to do so would be outside the scope of any implied power in the retainer to make decisions on behalf of the appellant.

Moreover, it is outside the scope of any implied retainer for trial counsel to conduct a positive defence that is inconsistent with the accused's instructions as to what had actually occurred. A 'positive defence' includes cross‑examination of witnesses for the prosecution suggesting, expressly or impliedly, that counsel is putting his or her client's instructions as to relevant factual matters.

It is unnecessary to determine whether trial counsel may, with the client's consent, put in cross‑examination a positive defence that is inconsistent with his or her client's instructions as to what actually occurred. Even if permissible, the client would have to be informed by trial counsel that he or she could not lead evidence from the accused that was inconsistent with his or her instructions as to what actually occurred. That is, prior to the cross‑examination the client would have to elect not to give evidence at trial. In that way there would be no breach of the first aspect of the rule in Browne v Dunn (Browne v Dunn). As to which, see Merrey v The State of Western Australia. (citations omitted)

1. In Morgan v The State of Western Australia [No 2],[7] this court stated the relevant general principles which govern the determination of whether the conduct of defence counsel has caused a miscarriage of justice, as follows:

The relevant general principles as to when a miscarriage of justice may arise through incompetent representation were recently summarised by this court in Huggins v The State of Western Australia (Huggins v The State of Western Australia [2018] WASCA 61 [375] ‑ [401]). We adopt that comprehensive analysis without repeating it, noting the following passage of the reasons in that case (Huggins [376]):

An appellant who seeks to demonstrate that the conduct of his or her counsel caused a miscarriage of justice undertakes a heavy burden which is not easily discharged. This is a consequence of the adversarial nature of a criminal trial and the role played by counsel. Ordinarily, an accused is bound by the way the trial is conducted by counsel even if that was not in accordance with the wishes of the client. It is not a ground for setting aside a conviction that decisions made by counsel were made without or contrary to instructions or involved errors of judgment or even negligence. It is not the province of appellate courts to review the wisdom or prudence of the conduct of a trial by trial counsel. For example, an apparently rational decision by trial counsel as to what evidence to call or not to call does not give rise to a miscarriage of justice simply because an appellate court thinks it worked to the probable disadvantage of the appellant. (citations omitted)

Further, as was recently reiterated in Jeffery v The State of Western Australia (Jeffery v The State of Western Australia [2018] WASCA 219 [104] (citing Buss P in Rodi v The State of Western Australia [2017] WASCA 81; (2017) 51 WAR 96 [115]), this court does not examine whether a decision taken by the appellant's counsel at the trial was, in fact, taken for the purpose of obtaining a forensic advantage or avoiding a forensic disadvantage. Rather, the court is concerned only with whether counsel's decision is capable of explanation on that basis. That is, could there be any reasonable explanation for the decision? The test is objective in character.

In Craig v The Queen (Craig v The Queen [2018] HCA 13; (2018) 92 ALJR 390), the High Court considered how inadequate legal advice on an accused's choice to give evidence may give rise to a miscarriage of justice. The court recognised that a trial may be unfair because the exercise of an accused's right to give evidence in his or her defence was effectively foreclosed by the receipt of incorrect advice, Craig [32].

However, the High Court rejected the proposition that, where an accused is aware of the right to give evidence, any material error in legal advice bearing on the exercise of the right denies an essential condition of a fair trial, Craig [26] ‑ [27]. In the context of a decision not to give evidence, the court considered that, Craig [27]:

At the least, demonstration that incorrect advice has occasioned a miscarriage of justice will require consideration of the relation between the advice and the decision not to give evidence.

The High Court held that an appellate court's assessment of whether the decision not to give evidence deprived an accused of a fair trial looks to the nature and effect of the incorrect advice on the accused's decision. It is not an assessment of whether an objectively rational justification could be assigned to the decision, Craig [33].

1. The appellant appears to assert that defence counsel's conduct of the trial occasioned material irregularities as follows. First, defence counsel failed to pursue an alternative defence case theory that other people were involved in or responsible for Mr Tran's death. Secondly, defence counsel failed to act upon materials provided by Ms Calabro in relation to the Facebook screenshots and upon information provided by Ms Calabro in relation to potential defence witnesses who could give evidence about Mr Tran's character and propensity for violence. Thirdly, defence counsel failed to obtain details of pending criminal charges against Mr Tran and to adduce evidence of those pending charges at the appellant's trial.
2. The appellant's complaint in relation to pursuing the alternative defence case theory must be evaluated having regard to the following:

(a) The formal admissions made by the appellant, pursuant to s 32 of the Evidence Act, at the commencement of the trial included admissions that Mr Tran died as a result of injuries caused to him by the appellant at 120 Balga Avenue and that no other person was involved in causing Mr Tran's death. See [64(b) and (c)] above.

(b) The appellant asserted consistently from the time of his first contact with the authorities that he was the only person present when Mr Tran was killed and that he was solely responsible for Mr Tran's death. The appellant adopted that stance during the initial 000 emergency call (Exhibit 4.1 and 4.2) and during two police interviews and an off‑camera conversation he had with Detective Senior Constable Carbone and Detective Senior Constable Dorrington.

(c) The appellant's evidence at trial included the assertion that he was solely responsible for killing Mr Tran and that he was the only person present when Mr Tran was killed.

(d) The forensic evidence relating to the manner in which Mr Tran was killed and the crime scene at 120 Balga Avenue were consistent with only one person having been present when Mr Tran was killed.

(e) During the electronically recorded conversation on 13 July 2018 (Exhibits 31.1 and 31.2) the appellant said in effect that he was the only person present when Mr Tran was killed. See [68(a)] above.

(f) During the electronically recorded conversations on 3 August 2018 (Exhibits 32.1 and 32.2) and 21 September 2018 (Exhibits 36.1 and 36.2) the appellant admitted that he had killed Mr Tran. See [68(b) and (f)] above.

(g) It was common cause at the trial that Mr Tran was very violent and erratic and had a propensity for violence. There was substantial evidence adduced at the trial about Mr Tran's criminal convictions, erratic behaviour and propensity for violence, including unchallenged evidence about Mr Tran's assertions concerning his previous acts of violence.

1. The appellant's complaint in relation to pursuing the alternative defence case theory must also be evaluated having regard to the findings we have made at [170] ‑ [173] above in relation to the evidence given by Mr Woodhouse, the appellant and Ms Calabro before this court.
2. Further, in his evidence at the hearing of the appeal the appellant did not retract his previous admissions that he was solely responsible for killing Mr Tran.
3. Further, there was no admissible evidence adduced at the hearing of the appeal to the effect that any other people (apart from the appellant) were involved in or responsible for Mr Tran's death. The evidence of Ms Calabro in the appeal to the effect that other people (apart from the appellant) were involved in or responsible for Mr Tran's death is hearsay and inadmissible.
4. We are satisfied, having regard to the matters to which we have referred at [189] ‑ [192] above, that defence counsel acted in accordance with the appellant's instructions that he was solely responsible for Mr Tran's death and that no other people were involved in or responsible for his death. Defence counsel acted properly in not pursuing the alternative defence case theory. Indeed, it would have been improper in the circumstances and would have occasioned a material irregularity if defence counsel had pursued the alternative defence case theory.
5. As to the appellant's complaint that defence counsel failed to act upon materials provided by Ms Calabro in relation to the Facebook screenshots and upon information provided by Ms Calabro in relation to potential defence witnesses who could give evidence about Mr Tran's character and propensity for violence, we are satisfied, having regard to the matters to which we have referred at [189] ‑ [192] above, that:

(a) the screenshots from Mr Tran's Facebook page were somewhat vague and it was unclear whether they were in fact linked to Mr Tran;

(b) before and during the trial the issue of the Facebook screenshots, the names of potential defence witnesses provided by Ms Calabro, the overall issue of witnesses and the evidence to be called or used by the defence at trial was discussed on numerous occasions between Mr Woodhouse, the appellant and Mr Freitag;

(c) ultimately, it was decided between Mr Woodhouse, the appellant and Mr Freitag that there was significant evidence as part of the State's case of Mr Tran's character and propensity for violence;

(d) that evidence could be and was indeed adduced by or through the State's witnesses at trial;

(e) consequently, it was agreed that the Facebook screenshots would not be used at the trial and no defence witnesses (apart from the appellant) would be called; and

(f) the appellant agreed to that course of action and did not, at any stage, raise any concerns or reservations about it.

1. Defence counsel acted in accordance with the appellant's instructions upon the materials provided by Ms Calabro in relation to the Facebook screenshots and upon the information provided by Ms Calabro in relation to potential defence witnesses who could give evidence about Mr Tran's character and propensity for violence. Further and in any event, the decisions made by defence counsel, in the exercise of their discretion, concerning what issues to contest, what witnesses to call, what evidence to lead or seek to have excluded, and what lines of argument to pursue were rational and reasonable. Defence counsel's conduct in relation to these aspects of the appellant's case at trial did not result in a material irregularity in the trial. Defence counsel acted properly in their conduct of the appellant's case at trial.
2. The decisions of defence counsel at the trial not to obtain details of pending criminal charges against Mr Tran and not to adduce evidence of those pending charges at the appellant's trial were consistent with the appellant's acceptance of advice from Mr Freitag and Mr Woodhouse before and during the trial that the prosecution witnesses would give the defence 'more than enough' in relation to Mr Tran's propensity for violence and criminal history. As we have mentioned, it was common cause at the trial that Mr Tran was very violent and erratic and had a propensity for violence. There was substantial evidence adduced at the trial about Mr Tran's criminal convictions, erratic behaviour and propensity for violence, including unchallenged evidence about Mr Tran's assertions concerning his previous acts of violence. Further and in any event, the decisions made by defence counsel, in the exercise of their discretion, concerning what issues to contest, what witnesses to call, what evidence to lead or seek to have excluded, and what lines of argument to pursue were, as we have mentioned, rational and reasonable. Defence counsel's conduct in relation to these aspects of the appellant's case at trial did not result in a material irregularity in the trial. We reiterate that defence counsel acted properly in their conduct of the appellant's case at trial.
3. Ground 2 is without merit. Leave to appeal on ground 2 should therefore be refused.

1. Ground 3 alleges, in essence, that the jury's verdict of guilty of murder was unreasonable and could not be supported having regard to the defences available under s 244 and s 248 of the Code. Ground 3.1 asserts that the defence under s 244 was available because Mr Tran punched the appellant in the face at the front door of the appellant's dwelling and consequently Mr Tran was a home invader. Mr Tran then continued to assault the appellant and threaten the appellant while Mr Tran was in the dwelling. Ground 3.2 asserts that the defence under s 248 was available because Mr Tran assaulted and threatened the appellant on many occasions; Mr Tran's actions were escalating and threats of imminent danger were looming; and Mr Tran had threatened to kill others indirectly and in front of the appellant.
2. Ground 4 alleges, in essence, that the jury's verdict of guilty of murder was unreasonable and could not be supported having regard to the defence of excessive self‑defence that was available under s 248 of the Code.
3. It is convenient to consider grounds 3 and 4 together.
4. The function of an appeal court in determining whether, having regard to the evidence, a verdict of guilty on which a conviction is based is unreasonable or cannot be supported, is explained in Wark v The State of Western Australia.[8] It is unnecessary to repeat the observations made in Wark.
5. Section 244 of the Code provides:

(1) It is lawful for a person (the occupant) who is in peaceable possession of a dwelling to use any force or do anything else that the occupant believes, on reasonable grounds, to be necessary ‑

(a) to prevent a home invader from wrongfully entering the dwelling or an associated place; or

(b) to cause a home invader who is wrongfully in the dwelling or on or in an associated place to leave the dwelling or place; or

(c) to make effectual defence against violence used or threatened in relation to a person by a home invader who is ‑

(i) attempting to wrongfully enter the dwelling or an associated place; or

(ii) wrongfully in the dwelling or on or in an associated place;

(d) to prevent a home invader from committing, or make a home invader stop committing, an offence in the dwelling or on or in an associated place.

(1A) Despite subsection (1), it is not lawful for the occupant to use force that is intended, or that is likely, to cause death to a home invader unless the occupant believes, on reasonable grounds, that violence is being or is likely to be used or is threatened in relation to a person by a home invader.

(2) A person is a home invader for the purposes of subsection (1) if the occupant believes, on reasonable grounds, that the person ‑

(a) intends to commit an offence; or

(b) is committing or has committed an offence,

in the dwelling or on or in an associated place.

(3) The authorisation conferred by subsection (1)(a), (b) or (d) extends to a person assisting the occupant or acting by the occupant's authority.

(4) If under subsection (1)(c) it is lawful for the occupant to use a degree of force, it is lawful for another person acting in good faith in aid of the occupant to use the same degree of force to defend the occupant.

(5) This section has effect even if the conduct it authorises would not otherwise be authorised under this Chapter.

(6) In this section ‑

(a) any place that is used exclusively in connection with, or for purposes ancillary to, the occupation of the dwelling; and

(b) if the dwelling is one of 2 or more dwellings in one building or group of buildings, a place that occupants of the dwellings use in common with one another;

offence means an offence in addition to any wrongful entry;

place means any land, building or structure, or a part of any land, building or structure.

harmful act means an act that is an element of an offence under this Part other than Chapter XXXV.

(2) A harmful act done by a person is lawful if the act is done in self‑defence under subsection (4).

(3) If ‑

(a) a person unlawfully kills another person in circumstances which, but for this section, would constitute murder; and

(b) the person's act that causes the other person's death would be an act done in self‑defence under subsection (4) but for the fact that the act is not a reasonable response by the person in the circumstances as the person believes them to be,

the person is guilty of manslaughter and not murder.

(4) A person's harmful act is done in self‑defence if ‑

(a) the person believes the act is necessary to defend the person or another person from a harmful act, including a harmful act that is not imminent; and

(b) the person's harmful act is a reasonable response by the person in the circumstances as the person believes them to be; and

(c) there are reasonable grounds for those beliefs.

(5) A person's harmful act is not done in self‑defence if it is done to defend the person or another person from a harmful act that is lawful.

(6) For the purposes of subsection (5), a harmful act is not lawful merely because the person doing it is not criminally responsible for it.

1. It is apparent from the jury's verdict of guilty of murder that the jury rejected the appellant's evidence at trial that he had no option but to kill Mr Tran and the appellant's evidence that he believed it was necessary to kill Mr Tran in order to defend himself and/or others from future violence by Mr Tran.
2. The jury had the very significant advantage (which is not enjoyed by this court) of seeing and hearing the appellant give his evidence.
3. On our examination of the trial record, the jury was entitled to form the view (and, subject to the jury's significant advantage, on our assessment of the trial record as a whole, we have formed the view) that the appellant's evidence was, in material respects, untruthful or unreliable and that those parts of the appellant's evidence that were exculpatory should be rejected.
4. In particular, the jury was entitled to reject the appellant's evidence (and, subject to the jury's significant advantage, on our assessment of the trial record as a whole, we would reject the appellant's evidence) as to:

(a) the potential threat which Mr Tran posed to the appellant and/or others;

(b) the appellant's state of mind when he killed Mr Tran; and

(c) relevant events which occurred between the appellant and Mr Tran on 8 July 2018, while no one else who gave evidence at the trial was present, and which culminated in Mr Tran's death.

1. The appellant's comment to his sister, Ms Calabro, while he was in custody:

Well just remember this mate, I haven't done my police interview of what occurred at the house yet ... I can make up any story I like',

was, objectively, seriously damaging to the appellant's credibility. See [68(c)] above.

1. The evidence at the trial established that on 8 July 2018 Mr Tran had been subdued and restrained (including bound with tape) at the appellant's house. Initially, while Mr Tran was subdued and restrained (including bound), the appellant had support from Daniel Ogilvie, Mr Brown, Ms Drayton and Mr Wright. The appellant said in cross‑examination that he had bound Mr Tran's wrists as, in effect, an act of revenge, namely to '[t]each him what it's like to do what he was saying that he was doing to other people' (ts 1056). Although the appellant claimed that Mr Tran 'was ... at no time a victim' (ts 1056), it was reasonably open to the jury, on our examination of the trial record, to conclude (and, subject to the jury's significant advantage, on our assessment of the trial record as a whole, we conclude) that the appellant's assertion that he had told Daniel Ogilvie, Mr Brown, Ms Drayton and Mr Wright to leave his house in order to 'deescalate the situation' (ts 998) was untrue.
2. The appellant assaulted Mr Tran, while Mr Tran was subdued and restrained (including bound), and seriously injured him.
3. The State's case at the trial was that the appellant's decision at that stage to kill Mr Tran and the appellant's subsequent actions in killing him were not done in defence against a home invader within s 244 of the Code or in self‑defence within s 248 of the Code.
4. We are satisfied, on our examination of the trial record, that it was reasonably open to the jury to be satisfied beyond reasonable doubt (and, subject to the jury's significant advantage, on our assessment of the trial record as a whole, we are satisfied beyond reasonable doubt) that the appellant knew that, at the material time, Mr Tran was incapable of posing any threat to him or others, either immediately or in the short to medium term, and that the appellant's action in killing Mr Tran was not necessary to prevent him from committing or threatening violence or any other offence against the appellant or others.
5. The State's case at trial (as summarised by the trial judge in her summing up) relied upon five critical aspects of the evidence adduced at trial for the purpose of proving beyond reasonable doubt that:

(a) the appellant was not in fear of Mr Tran when the appellant killed him;

(b) the appellant did not believe, on reasonable grounds, when he killed Mr Tran that killing Mr Tran was necessary to make effectual defence against violence used or threatened in relation to a person by Mr Tran or to prevent Mr Tran from committing, or make Mr Tran stop committing, an offence in the appellant's house or on or in an associated place;

(c) the appellant did not believe that killing Mr Tran was necessary to defend the appellant or another person from a harmful act by Mr Tran, including a harmful act that was not imminent; and

(d) the appellant did not believe that killing Mr Tran was a reasonable response by the appellant in the circumstances as the appellant believed them to be.

1. First, the appellant had permitted Mr Tran to use his house as a 'base' (ts 940 ‑ 941, 1026). Secondly, the appellant had spent a significant period of time with Mr Tran during the four days before his death in circumstances where the appellant could have escaped from Mr Tran if he had wanted to. During the 13 July 2018 prison visit (Exhibit 31) the appellant told his visitors that it was 'really fascinating to see [Mr Tran] at work'. That comment was inconsistent with the appellant's evidence that he had no choice but to kill Mr Tran. Thirdly, the appellant accepted in evidence that he was deliberately watching Mr Tran for the purpose of working out how he operated and to obtain some information about him (ts 1025). Fourthly, on the morning of 8 July 2018, the appellant did not ask Ms Oldham to take Mr Tran away or tell Mr Tran to leave his house. Instead, knowing that Mr Tran was at his door, the appellant opened the door to let him in. After Mr Tran punched the appellant at the door, the appellant told Mr Tran that he would pay for what he had done (ts 1045 ‑ 1046). It is apparent that the appellant was not in fear of Mr Tran and did not want Mr Tran to leave his house. Fifthly, when the appellant had the support and protection of others, he told them to leave. The appellant asked Mr Jacobs and Tania Hill to leave the house and go and buy drugs (ts 981). The appellant did not ask them to obtain help or contact the police. The appellant asked Daniel Ogilvie, Mr Brown, Ms Drayton and Mr Wright to leave the house (ts 999). He did not ask them to obtain help or contact the police. It is apparent that the appellant was not afraid to be alone with Mr Tran. Indeed, the appellant wanted to be alone with Mr Tran so that he could assault and kill Mr Tran without any other people being present.
2. We are satisfied, on our examination of the trial record, that it was reasonably open to the jury to conclude (and, subject to the jury's significant advantage, on our assessment of the trial record as a whole, we conclude) that the State had negatived beyond reasonable doubt the defence against a home invader under s 244 of the Code. We are of that view for the following reasons.
3. First, shortly after the appellant permitted Mr Tran to enter the appellant's house on the morning of 8 July 2018, Mr Tran was prevented from leaving the appellant's house in that Mr Tran's arms and legs were bound and he was then assaulted and rendered unconscious before being killed. Secondly, the appellant was not authorised to used lethal force against Mr Tran because, at the time he killed Mr Tran, the appellant could not possibly have believed, on reasonable grounds, that violence was being or was likely to be used or was threatened by Mr Tran in the appellant's house or on or in an associated place. In particular:

(a) when he was killed, Mr Tran (to the appellant's knowledge) was bound and unconscious;

(b) Mr Tran was being forcibly restrained and detained by the appellant in the appellant's house when he was killed; and

(c) shortly before he was killed, Mr Tran had been assaulted and the assault had resulted in a fractured jaw and a fractured skull, with consequential brain damage: although the appellant would not have known the precise nature of Mr Tran's injuries, he must have known that Mr Tran was seriously injured and unconscious.

It is unnecessary, in the present case, to determine the point that was left open in Thorns v The State of Western Australia,[9] namely whether a person who is in a dwelling with the occupier's consent can be a home invader for the purposes of s 244.

1. We are also satisfied, on our examination of the trial record, that it was reasonably open to the jury to conclude (and, subject to the jury's significant advantage, on our assessment of the trial record as a whole, we conclude) that the State had negatived beyond reasonable doubt the defence of self‑defence under s 248 of the Code. We are of that view for the following reasons.
2. First, when he killed Mr Tran, the appellant did not need to defend himself or another from an unconscious, bound and beaten man who had serious injuries as a result of the appellant's assaults upon him. If, contrary to our view, the appellant could possibly have held that belief, it was not reasonable. For example, shortly after killing Mr Tran, the appellant took Mr Tran's jacket and wore it '[c]os it was a nice jacket' (ts 1063). That was not the action or response of a person who had just killed as a result of fear.
3. Secondly, on our examination of the trial record, it was reasonably open to the jury to conclude that the appellant's demeanour in the police interviews was inconsistent with his claim that he had no choice but to kill Mr Tran. For example, the appellant admitted to the interviewing police officers, 'I don't need to get it off my chest. I don't really give a shit to be honest' (Exhibit 28.2).
4. Thirdly, on our examination of the trial record, it was reasonably open to the jury to conclude that the appellant's attitude towards Mr Tran, as revealed by his evidence at the trial, in the first and second police interviews and in the electronically recorded conversations while he was in custody, established that the appellant did not kill Mr Tran out of fear or to defend himself or another but, instead, as a result of anger, malice and revenge.
5. Fourthly, on our examination of the trial record, the direct and circumstantial evidence adduced by the State at the trial, considered as a whole, was sufficient to enable the jury to be satisfied beyond reasonable doubt that the appellant had decided to kill Mr Tran as a result of anger, malice and revenge; and not because he believed that violence was being or was likely to be used or was threatened by Mr Tran in the appellant's house or on or in an associated place; and not because he feared Mr Tran or needed to defend himself or another. The appellant's conduct in asking Mr Jacobs, Tania Hill, Daniel Ogilvie, Mr Brown, Ms Drayton and Mr Wright to leave the house, and his conduct in not asking them to obtain help or contact the police, were inconsistent with the appellant's evidence that was relevant for the purposes of s 244 and s 248 of the Code.
6. We are satisfied, after reviewing the trial record and weighing the whole of the evidence, that it was reasonably open to the jury to be satisfied beyond reasonable doubt that the appellant unlawfully killed Mr Tran with the requisite mental element for murder. The trial record does not require the conclusion that the jury must necessarily have entertained a reasonable doubt in relation to the unlawfulness of the killing or the requisite mental element for murder. In particular, the trial record does not require the conclusion that the jury must necessarily have had a reasonable doubt as to whether the State had negatived beyond reasonable doubt the defence against a home invader under s 244 of the Code or the defence of self‑defence under s 248 of the Code. The jury's verdict was supported by evidence that the jury was entitled to accept and by inferences that the jury was entitled to draw. Our assessment of the matters complained about by the appellant, in the context of grounds 3 and 4, does not persuade us that the jury, acting reasonably, should have decided that the State had not proved all of the elements of the offence of murder and had not negatived all of the relevant defences to the criminal standard. A jury, acting reasonably, was not precluded by the state of the evidence at trial from convicting the appellant of murder. The nature and quality of the evidence was sufficient to remove any doubt that the appellant was guilty of murder. After paying full regard to the consideration that the jury was the tribunal of fact entrusted with the primary responsibility of determining guilt or innocence, and after paying full regard to the consideration that the jury had the very significant advantage (which this court does not have) of having seen and heard the witnesses, we do not have a reasonable doubt as to the appellant's guilt or as to the correctness of his conviction. It would not be dangerous, in the circumstances, to permit the verdict of guilty of murder to stand.
7. Grounds 3 and 4 are without merit. Leave to appeal on those grounds should therefore be refused.

1. Proposed ground 5 alleges, in essence, that the trial judge misdirected the jury in relation to the meaning of the word 'wrongfully' in s 244(1) of the Code and that the misdirection involved an error of law and fact, and occasioned a miscarriage of justice.
2. The word 'wrongfully' appears on four occasions in s 244(1). In particular, s 244(1) provides that it is lawful for a person (the occupant) who is in peaceable possession of a dwelling to use any force or do anything else that the occupant believes, on reasonable grounds, to be necessary (emphasis added):

(a) 'to prevent a home invader from wrongfully entering the dwelling or an associated place' (para (a)); or

(b) 'to cause a home invader who is wrongfully in the dwelling or on or in an associated place to leave the dwelling or place' (para (b)); or

(c) 'to make effectual defence against violence used or threatened in relation to a person by a home invader' who is 'attempting to wrongfully enter the dwelling or an associated place' or 'wrongfully in the dwelling or on or in an associated place' (para (c)); or

(d) 'to prevent a home invader from committing, or make a home invader stop committing, an offence in the dwelling or on or in an associated place' (para (d)).

1. Section 244(2) provides that a person is a 'home invader' for the purposes of s 244(1) if the occupant believes, on reasonable grounds, that the person:

(a) intends to commit an 'offence'; or

(b) is committing or has committed an 'offence',

1. Section 244(6) provides, relevantly, that in s 244 'offence' means 'an offence in addition to any wrongful entry'.
2. The word 'wrongfully' is not defined in the Code.
3. The trial judge directed the jury that 'a wrongful entry', for the purposes of s 244(1) of the Code, is 'an entry without the consent, permission or licence of the owner, or someone who is in lawful possession of the property' (ts 1257). Her Honour then elaborated (ts 1258):

(a) there was no dispute, in the present case, that the appellant 'was in lawful possession of the property so a wrongful entry is an entry without his consent, permission or licence'; and

(b) 'the time you must consider' the issue of wrongful entry 'is the time when [the appellant] committed the fatal acts'.

1. A little later in her summing up, her Honour gave the jury these additional directions about the concept of 'wrongfully', for the purposes of s 244(1) (ts 1261):

So as I've said, 'wrongfully enter' means to enter a place without the consent, permission, or license [sic] of the owner or another person who is in lawful possession, and in this case we're talking about Mr Calabro. Now then, to be wrongfully in a dwelling means to be in a house without the consent, permission, or license [sic] of, in this case, Mr Calabro.

It is important for you to appreciate, members of the jury, that a person may wrongfully enter a dwelling, but after that be given permission to be in the premises and thus, no longer be wrongfully in the premises.

An example I could give you is that you could break in to your friend's house without their permission, but once they sort of found out who you were and why you had done it they might then give you permission to stay there.

So your situation may change. ... [J]ust because you wrongfully entered doesn't mean that you are wrongfully in the premises. And the alternative would apply as well. You could enter with permission, but once you had done something in the premises the person in lawful possession of them might revoke your permission to be there.

So simply because you decide that [Mr Tran] had wrongfully or not wrongfully entered the premises doesn't determine whether he was wrongfully in the premises at the time he was killed.

And that is the time that you have to focus on in relation to paragraph 8 [of the jury handout]. In relation to the accused's beliefs you must consider the accused's state of mind at the time he committed the fatal acts.

That is what his true belief was. In relation to paragraph A [of the jury handout] you will have to consider whether there was violence used or threatened to Mr Calabro by Mr Tran whilst Mr Tran was wrongfully in the dwelling.

You will have to consider whether Mr Calabro believed that Mr Tran was wrongfully in the house at the time he committed the fatal acts. Did Mr Calabro believe that Mr Tran was there at the time without his permission?

If Mr Calabro knew that he had bound Mr Tran's arms and legs, which prevented him from leaving the house you may take this in to account in deciding whether the State has proved that the accused did not believe that Mr Tran was wrongfully in the house.

1. We are of the opinion that the trial judge did not misdirect the jury in relation to the meaning of the word 'wrongfully' in s 244(1) of the Code. Her Honour's directions about the meaning of that term, in the context of the relevant evidence at the trial and the matters in dispute in relation to s 244(1), did not contain any material error.
2. Ground 5 is without merit. Leave to amend the grounds of appeal by the addition of ground 5 should therefore be refused.

1. Proposed ground 6 alleges, in essence, that inadmissible evidence, including recordings, was admitted at the trial and that the admission of that evidence, including the recordings, involved an error of law and fact by the trial judge and occasioned a miscarriage of justice. Ground 6 comprises, in essence, five sub‑grounds.
2. As to ground 6.1, which alleges that the first and second police interviews were wrongly admitted into evidence at the trial, contrary to s 106HB of the Evidence Act:

(a) The appellant contends that the admission into evidence of the electronic recordings of his first and second police interviews was contrary to s 106HB of the Evidence Act because of his alleged 'mental impairment' when the interviews were conducted on 8 and 9 July 2018.

(b) Section 106A to s 106T, read with schedule 7, of the Evidence Act apply to the evidence of children and special witnesses.

(c) Section 106HB provides:

(1) In any proceeding for an offence (the proceeding) one or more visually recorded interviews may be admitted as the whole or a part of the evidence in chief of a witness ‑

(a) irrespective of the age or maturity of the witness at the time of the proceeding; and

(b) even if the witness is capable of giving evidence at the proceeding.

(1a) A visually recorded interview with a person with a mental impairment is not to be admitted in the proceeding under subsection (1) unless the person is a special witness.

(2) A visually recorded interview is not to be admitted in the proceeding under subsection (1) unless ‑

(a) a transcript of it has been given to the accused; and

(b) the accused and his or her counsel have, in accordance with the regulations, been given a reasonable opportunity to view the visually recorded interview.

(3) Neither the accused nor his or her counsel is entitled to have possession of, or of a copy of ‑

(a) a visually recorded interview; or

(b) a visual recording of evidence on which a visually recorded interview is recorded or which incorporates a visually recorded interview.

(4) A visually recorded interview is admissible under subsection (1) to the same extent as if statements made in it by the witness were given orally in the proceeding in accordance with the usual rules and practice of the court concerned.

(5) If a visually recorded interview is admissible under subsection (1), the judge in the proceeding may give any directions the judge thinks fit as to ‑

(a) the presentation of it and the excision of matters from it; and

(b) the manner in which further evidence in chief of the witness may be given and in which any cross‑examination and any re‑examination of the witness is to be conducted in the proceeding.

(6) A visually recorded interview is not to be admitted under subsection (1) if it has been edited or altered otherwise than in accordance with a direction under subsection (5)(a).

(6a) If a visually recorded interview of a witness is admitted under subsection (1), then, while the recording is played to the court, the witness must not be present in court, or be visible or audible by closed‑circuit television or by means of any similar technology to anyone in the court other than, in the case of a trial by jury, the judge.

(7) The following provisions apply if the proceeding is on indictment ‑

(a) if a visually recorded interview is admitted under subsection (1), the judge is to instruct the jury that the procedure is a routine practice of the court and that they should not draw any inference as to the accused's guilt from the use of the procedure;

(b) if the judge is deciding whether or not to warn the jury that it may be dangerous to convict on the evidence of the complainant alone because of the length of the period between the offence and the proceeding, the admission under subsection (1) of a visually recorded interview with the complainant is not a relevant factor except to the extent that the length of the period between the offence and the admission of the official visually recorded interview may have affected the ability to test the evidence so admitted;

(c) the fact that there was a visually recorded interview that the prosecutor did not adduce under subsection (1) is not to be the subject of comment to the jury by the judge, the accused or the accused's counsel.

(8) Subsection (7)(c) does not prevent a judge from directing a jury about a breach of subsection (7)(c) by the accused or the accused's counsel, if it is in the interests of justice to do so.

(d) Section 106HB does not apply to the admissibility of out of court statements by an accused.

(e) Section 106HB therefore did not apply to the appellant.

(f) If ground 6.1 is to be understood as asserting that the electronic recordings of the first and second police interviews were inadmissible on some other basis, Dr Pascu made these observations about those electronic recordings in her report dated 7 March 2023 at [56] ‑ [59]:

It is salient to note, however, that the police videotaped record of both interviews confirms that Mr Calabro's mental state was stable with no evidence of any psychotic or affective symptoms. He was reasonably cooperative although he appeared to be more in control of the interview process than the two detectives.

There was evidence of Mr Calabro leading the entire process, setting boundaries to the extent of knowingly altering the expected interview process. He appeared to understand the questions and was articulate in his answers. There was evidence during the interviews of Mr Calabro at times reminding the interviewers how they should not upset him which the interviewers accepted and complied with allowing him to essentially discuss what he wanted to discuss and not what the purpose of the interview was for.

The limited information he provided was consistent with the information Mr Calabro provided during the interview for this report. He did not describe experiences consistent with a psychotic illness at the time of the alleged offence during the interview with the Police and his behaviour did not indicate that he might have been distracted or affected by active psychotic or affective symptoms at the time of the interview.

There was no evidence to suggest that Mr Calabro was under the influence or intoxicated with alcohol and substances at the time of the interviews with the Police which was consistent with the information he provided during the interview for this report.

(g) Dr Pascu's observations accord with our own impressions of the appellant upon watching the electronic recordings of the first and second police interviews.

(h) As we have mentioned, the material before this court does not indicate that there was a reasonably arguable case for objection to the admissibility at the trial of any of the admissions against interest made by the appellant in the first and second police interviews having regard to the alleged matters complained of in ground 6.1.

(i) Ground 6.1 is without merit.

1. As to ground 6.2, which alleges that the electronically recorded conversations engaged in by the appellant with friends and family members, while he was in custody awaiting trial, were wrongly admitted into evidence at the trial, contrary to s 106HB of the Evidence Act, due to the appellant's alleged 'mental impairment', and ground 6.3, which alleges that those recordings were inadmissible due to his alleged 'mental impairment' and the recordings should have been excluded under s 112 of the Evidence Act because they were 'extremely prejudicial':

(a) As we have mentioned, in the context of ground 6.1, s 106HB of the Evidence Act does not apply to the admissibility of out of court statements made by an accused and s 106HB therefore did not apply to the appellant.

(b) Section 112 of the Evidence Act merely states that s 109 to s 114 do not affect the power of a court in a criminal proceeding to exclude evidence that has been obtained illegally or would, if admitted, operate unfairly against the accused.

(c) The critical issue at the trial was whether the State had proved beyond reasonable doubt that the appellant's actions in killing Mr Tran were unlawful. The appellant's electronically recorded conversations with friends and family members, while he was in custody awaiting trial, were relevant to the proof by the State that there was no reasonable basis upon which the appellant believed that it was necessary to kill Mr Tran and to proof by the State that the appellant intentionally killed Mr Tran as a result of anger, malice and revenge.

(d) The electronically recorded conversations contained significant inculpatory statements by the appellant, including the following (emphasis added):

(i) 13 July 2018 prison visit (Exhibit 31): The appellant told his visitors that he had spoken to police, stating 'I've said plenty ... But I have had to redirect everything into way that, um, nobody else gets implicated - - - unfortunately. I haven't actually given the specifics of what's happened in the house ... But when everything occurred - - - I'm the only one there. And I've locked the door. And I've left. So, nobody's seen what's happened in between that. So, I'm the only one that knows what's happened to that body'.

(ii) 3 August 2018 prison visit (Exhibit 32): The appellant told a male friend that he had not told the homicide officers 'the part in the middle' of what had happened when he killed Mr Tran.

(iii) 21 September 2018 prison visit (Exhibit 36): The appellant made several statements during covertly recorded conversations with his visitors on 21 September 2018 which, on the State case, demonstrated his intent to kill Mr Tran and negatived the defence case that the appellant acted lawfully pursuant to s 244 of the Code:

When asked by one of his visitors: 'I wonder how long you're going to be in here for and what ---', the appellant replied: 'Murder, murder's about 17 years'.

'This guy's a shit cunt. He rolled up on me. Everybody knows he's a stand over, you know. I've only got the one thing working against me. The fact that I killed him and left the body in such disarray'.

'Come on Louise ... You know, you know me mate ... You know I can't stop once I've started' ... 'Well he got, he didn't even get everything that he, should have happened to him'.

'You know to me he looked like he was just asleep. I had to make sure he wasn't coming back'.

(e) The evidence at the trial did not establish, and the evidence before this court does not establish, that when the appellant engaged in the electronically recorded conversations with friends and family, while he was in custody awaiting trial, the appellant was suffering from a mental impairment which may possibly have made his admissions against interest unreliable or which may possibly have made it unfair for the State to rely upon the admissions at the trial. Indeed, the evidence of Dr Pascu in the appeal indicates that at an earlier stage, when the appellant participated in the first and second police interviews, the appellant was not suffering from a mental impairment which may possibly have affected the reliability of his admissions or which may possibly have made it unfair for the State to rely upon the admissions at the trial.

(f) Grounds 6.2 and 6.3 are without merit.

1. As to ground 6.4, which alleges that the trial judge erred by ruling that photograph 414 (depicting a cut to Mr Tran's neck) was admissible and should be received in evidence as Exhibit 41 in that the photograph was extremely prejudicial to the appellant and this prejudice outweighed any probative value the photograph may have had:

(a) Photograph 414 was tendered by the prosecutor following the appellant's insistence in cross‑examination that he had 'stabbed' Mr Tran in the neck (ts 1068 ‑ 1070, 1074 ‑ 1076).

(b) The tender of the photograph was necessary to demonstrate the nature and extent of the injury to Mr Tran's neck.

(c) The trial judge ruled that photograph 414 was admissible in that the photograph had significant probative value in establishing that there was a deliberate slicing of Mr Tran's throat and consequently the photograph contradicted the appellant's evidence that he had 'stabbed' Mr Tran in the neck (ts 1080).

(d) We accept that at least some members of the jury may have found the photograph confronting. However, we consider that the trial judge was correct, for the reasons she gave, in ruling that the photograph was admissible. In our opinion, nothing in the photograph might have resulted in a juror determining the State's case against the appellant otherwise than according to law or by reference to a proper evaluation of the evidence as a whole. See Liyanage v The State of Western Australia.[10]

(e) Ground 6.4 is without merit.

1. As to ground 6.5, which alleges that the trial judge erred by deciding that a ruler should be admitted into evidence as Exhibit 42 in that the ruler was tendered by the State for the purpose of representing the length of the wound suffered by Mr Tran and the width of the knife used to inflict the wound and, in these circumstances, the ruler was prejudicial to the appellant as it was a false and misleading representation of the stab wound:

(a) The ruler was marked, by a black mark, to show 21 cm and, by a green mark, to show 5 cm. Those intervals were marked on the ruler to indicate the width and depth respectively of Mr Tran's neck wound.

(b) We are satisfied that the tender of the ruler with the relevant markings was not relevantly prejudicial to the appellant. In particular, the ruler and the markings did not give a false or misleading impression in relation to the width or depth of the wound to Mr Tran's neck, having regard to the whole of the evidence at the trial including the expert evidence of Dr Cadden in relation to the autopsy he conducted on Mr Tran.

(c) Ground 6.5 is without merit.

1. Ground 6 as a whole is without merit. Leave to amend the grounds of appeal by the addition of ground 6 should therefore be refused.

(a) the trial judge erred 'by forcing the appellant, when giving evidence, to answer repetitive questions';

(b) her Honour erred 'by allowing the prosecutor to continue to be repetitive and harassing to the appellant whilst the appellant was giving evidence'; and

(c) her Honour erred 'by not adequately directing or misdirecting the jury'.

1. Ground 7 comprises, in essence, four subgrounds.
2. Ground 7.1 alleges that the trial judge forced the appellant, when giving evidence, to answer repetitive questions; the appellant said at ts 1098 that he had already answered a question; the question was repetitive; nevertheless, her Honour told the appellant that he was to answer the question again; this prejudiced the appellant at the time; and consequently, a miscarriage of justice occurred.
3. Ground 7.2 alleges that the trial judge allowed the prosecutor to be repetitive and harassing to the appellant while the appellant was giving evidence; her Honour allowed the prosecutor to be misleading, repetitive, unduly annoying and harassing; this was prejudicial to the appellant; consequently, a miscarriage of justice occurred.
4. Ground 7.3 alleges that the trial judge failed to direct the jury on the appellant's mental impairment or psychiatric diagnosis, the appellant having been mentally impaired and heavily medicated during the trial.
5. Ground 7.4 alleges that the trial judge failed to give an appropriate direction to the jury to cure 'the unsupported ... [alternative] version of events' advanced by the prosecutor in his cross‑examination and address to the jury; the prosecutor's alternative version of events, namely that '[Mr Tran] was on his knees facing the couch and had his neck cut from behind', was 'conceded' by the prosecutor; further, the trial judge failed to direct the jury on the prosecutor's concession; consequently, it was open to the jury to adopt the alternative version of events that the prosecutor had conceded; and the jury relied on the alternative version of events in arriving at their verdict, which was unreasonable and unsupported by the evidence.
6. The prosecutor in a criminal trial represents the State. The prosecutor must 'act with fairness and detachment and always with the objectives of establishing the whole truth in accordance with the procedures and standards which the law requires to be observed and of helping to ensure that the accused's trial is a fair one': Whitehorn v The Queen.[11]
7. As Mazza JA (McLure P agreeing generally & Newnes JA agreeing) noted in Goedecke v The State of Western Australia:[12]

Consistently with a prosecutor's duty, in a closing address a prosecutor should not (inter alia) tell a jury something that is not evidence (R v Callaghan [1993] QCA 419; [1994] 2 Qd R 300, 306; offer a personal opinion (KNP v The Queen [2006] NSWCCA 213; (2006) 67 NSWLR 227 [32]), introduce false lines of reasoning or invite a jury to speculate about the evidence. As to these last two points see Wood v The Queen [2012] NSWCCA 21.

See also JJS v The State of Western Australia;[13] MAM v The State of Western Australia.[14]

1. If a prosecutor breaches his or her duty at trial it will be necessary for an appellate court to evaluate the significance of the breach in the context of the trial as a whole, including whether any objection to the prosecutor's course of conduct was taken by defence counsel. See Whitehorn (664); Goedecke [35], [37]; JJS [134].
2. The trial record reveals that:

(a) The appellant's evidence‑in‑chief began at 3.30 pm and ended at 4.05 pm on 15 October 2019. His examination‑in‑chief began again at 10.00 am and was completed at 12.50 pm on 16 October 2019.

(b) The appellant's cross‑examination began at 12.50 pm and ended at 12.55 pm and began again at 2.16 pm and ended at 4.00 pm on 16 October 2019. The cross‑examination resumed at 10.02 am and was completed at 11.20 am on 17 October 2019.

(c) The appellant's re‑examination began at 11.20 am and was completed at 11.35 am on 17 October 2019.

1. So, the appellant was examined‑in‑chief for about 3 hours 25 minutes; he was cross‑examined for about 3 hours 7 minutes; and he was re‑examined for about 15 minutes.
2. As to ground 7.1, the question referred to by the appellant in ground 7.1 occurred in the course of the following passage in his cross‑examination (ts 1098):

... You didn't have any grounds, I suggest, to believe that Mr Tran intended to commit an offence against you? ‑ Of course. He'd committed ‑ he'd already been assaulting me across four days and threatening my life so of course I had grounds.

And when you ‑ ‑ ‑? ‑ Very reasonable grounds.

When you killed Mr Tran you didn't believe that it was necessary to defend yourself against violence there and then? ‑ Well, it was future violence as well. If I'd have untied him it possibly could have gone south very quickly.

And it really wasn't necessary to kill Mr Tran at all at that point, was it? ‑ I believed it was. That's why I did it.

There were any number of other things that you could have done short of killing him? ‑ Like leaving the state, that I should be chased out of my own home by a terrorist? I don't think so.

The dreadful truth of the matter is you decided to punish Mr Tran from the moment he walked into your home and ‑ and chipped you on the chin? ‑ I've already answered this question.

JENKINS J: Well, you can answer it again? ‑ No.

JUBB, MR: And it started four days ago when he marched into your house and started looking in all the rooms and showing you absolutely no respect? ‑ No.

And you were angry and wanted to get rid of him. That's what the truth is, isn't it? ‑ No.

And you held him, tied him up, kept him from actually leaving the house? ‑ That's ‑ ‑ ‑

That's right, isn't it? ‑ - - - correct.

And you deliberately killed him in the way that we've been through now this morning again? That's right, isn't it? ‑ That's correct.

1. There was nothing oppressive or unfair in the trial judge requiring the appellant to respond again to the prosecutor's proposition that the appellant had decided to punish Mr Tran from the moment Mr Tran had entered the appellant's home on 8 July 2018 and 'chipped [the appellant] on the chin'.
2. As to ground 7.2, the prosecutor's cross‑examination of the appellant must be considered in the context that no one, apart from the appellant and Mr Tran, was present when the appellant killed Mr Tran. The interaction between the appellant and Mr Tran, while they were alone in the appellant's house in the period leading up to the killing, was of critical importance in evaluating whether the State was able to prove that the appellant had killed Mr Tran with the requisite mental element for murder and whether the State was able to prove that the killing was unlawful by negating the defences under s 244 and s 248 of the Code.
3. It is true that there was some repetition in the prosecutor's questioning of the appellant. A degree of repetition is not unusual in cross‑examination. It was to be expected in the present case having regard to the context that we have mentioned at [252] above.
4. Counsel for the appellant made a number of objections during the prosecutor's cross‑examination of the appellant. See ts 1027, 1055, 1067, 1074, 1088 ‑ 1089. It is significant that none of the objections asserted that the prosecutor's questioning was misleading, repetitive, annoying or harassing.
5. We are satisfied, upon our review of the trial record, that there was nothing oppressive or unfair in the prosecutor's cross‑examination of the appellant. The prosecutor's questioning of the appellant cannot be characterised as misleading, unnecessarily repetitive, unduly annoying or harassing. The prosecutor fairly advanced the State's case.
6. As to ground 7.3, it is true that the trial judge did not direct the jury in relation to any mental impairment the appellant may have had or any psychiatric diagnosis that may have been made in relation to the appellant.
7. However, there was no evidence at the trial that during the trial the appellant was mentally impaired. Further, there was no evidence at the trial that during the trial the appellant was heavily medicated.
8. During the trial there was a discussion between the trial judge, the prosecutor and defence counsel in relation to the editing of the electronically recorded conversations between the appellant and friends and family members while the appellant was in custody awaiting trial (ts 862 ‑ 890). The debate included the edits to be made to part of a conversation in which the appellant discussed his mental health, treatment and medication, and how in the appellant's opinion his mental health would be a mitigating factor in any sentencing process.
9. Counsel for the appellant said (ts 865):

... [W]hen your Honour reads that section in context it's all about sentencing and I agree with my learned friend, sentencing is irrelevant. And then after that it becomes Mr Calabro talking about his own mental health as part of a conversation about:

- and we would say (a) the fact that it might be mitigatory is irrelevant. And (b) Mr Calabro's mental health has largely been irrelevant in this trial. We've not sought ‑ we won't be seeking to call any expert evidence about that and we're not suggesting he's not fit to stand trial.

We're not running section 27. So what's happening with his medication and 10 years of treatment and so on is not relevant and it potentially opens up a whole line of speculation for the jury. So our submission to your Honour would be that whole section gets edited out rather than just the words suggested by the State.

1. The approach adopted by counsel for the appellant in that passage involved a reasonable and rational forensic decision made in the course of the trial.
2. The trial judge ruled that the edits sought to be made by counsel for the appellant in relation to the part of the conversation in which Mr Calabro discussed his mental health, treatment and medication should be made (ts 872).
3. As we have mentioned, Dr Pascu was of the view that the electronic recordings of the first and second police interviews confirmed that at that time the appellant's mental state was stable with no evidence of any psychotic or affective symptoms. The appellant was reasonably cooperative during the interviews. He appeared to be more in control of the interview process than the two detectives. The appellant's behaviour during the interviews did not indicate that he might have been distracted or affected by active psychotic or affective symptoms at that time.
4. Also, as we have noted at [147(k) and (l)] above, Dr Pascu said in her report dated 7 March 2023 that:

(a) the appellant likely suffers from bipolar 2 mood disorder on the background of mixed personality disorder with borderline (emotionally unstable) and narcissistic traits;

(b) the psychotic symptoms described by the appellant at the time of Mr Tran's death are more likely methylamphetamine related than attributable to an underlying psychotic illness;

(c) the appellant does not suffer from a major psychotic disorder from a psychiatric viewpoint: bipolar 2 mood disorders do not cause psychosis; and

(d) the appellant was fit to stand trial with assistance from his counsel.

1. We are satisfied, upon our review of the trial record and having regard to the additional evidence that is admissible in the appeal, that the appellant understood the questions asked of him by his counsel and the prosecutor. He responded lucidly to the questioning. There is no reasonable possibility that the appellant was materially disadvantaged in giving his evidence or otherwise during the trial by any mental impairment he had or any medication he was taking. No suggestion to that effect was made at the trial by the appellant's competent and very experienced criminal defence barrister.
2. In the circumstances, the trial judge was not bound to direct the jury in relation to any mental impairment the appellant may have had or any psychiatric diagnosis that may have been made in relation to him.
3. As to ground 7.4, Detective Senior Constable Durka gave evidence that, when he conducted the forensic examination of the appellant's house following the death of Mr Tran, he identified two separate footprints of Mr Tran (ts 747). Both footprints were of the ball of Mr Tran's left foot (ts 747 ‑ 748). Both of the footprints were pointing towards the three‑seater couch (ts 749).
4. The prosecutor cross‑examined the appellant in relation to the footprints as follows (ts 1052 ‑ 1053):

You remember the evidence about his footprint, or footprints, just the ball of his foot? ‑ Yep.

In front of the sofa? ‑ Yes.

Was he kneeling down? Is that how he only had the balls of his feet on the floor? ‑ Well, he can't be because the balls of the feet are facing the sofa, not away from the sofa.

Well, that's what I'm suggesting, that he was kneeling down in front of the sofa while you were delivering blows to him ‑ ‑ ‑? ‑ Then ‑ ‑ ‑

‑ ‑ ‑ of some kind? ‑ Then his feet would be further away from the sofa so it can't be.

All right. Well, the members of the jury have that evidence. I suggest to you, when you hit him, when you stabbed him, at some point, he was kneeling down? ‑ No, he wasn't.

With his back facing you? ‑ No.

...

You saw the photographs of that orange and black, serrated knife sitting on the floor? ‑ Yes.

Laying on the floor. That was your knife? ‑ Yes.

Used in your work? ‑ Yes.

Cutting plaster board or things like that? ‑ Things like that.

And trying to cut Andrew Tran's neck with it? ‑ Well, I don't remember that.

Was it when he was kneeling down, as I suggest? ‑ He was never kneeling down.

1. The prosecutor questioned the appellant about the manner in which the appellant had inflicted various injuries upon Mr Tran. The cross‑examination included questions about Mr Tran's position during the appellant's attack upon him. The prosecutor put to the appellant that Mr Tran was kneeling at some stage while the appellant struck or stabbed Mr Tran (ts 1052). The prosecutor also put to the appellant that the injuries to the back of Mr Tran's neck might have been inflicted while Mr Tran was kneeling and facing the three‑seater couch (consistent with the footprints of the ball of Mr Tran's left foot) (ts 1053).
2. Although the prosecutor, in his questioning of the appellant, referred to the evidence about the ball of Mr Tran's foot (as distinct from the ball of his left foot), any lack of precision in that respect did not create any perceptible risk that the jury might have been misled by the prosecutor's description of Detective Senior Constable Durka's evidence. The appellant expressly acknowledged recalling the evidence in question (ts 1052).
3. The prosecutor did not act improperly in putting to the appellant a scenario that was different from the version of events described by the appellant in his evidence‑in‑chief. In particular, there was nothing improper or misleading in the prosecutor putting to the appellant that Mr Tran was kneeling at some stage while the appellant struck or stabbed Mr Tran (ts 1052). The appellant disavowed that proposition and insisted that Mr Tran 'was never kneeling down' (ts 1053). There was, however, some support for the prosecutor's proposition in Detective Senior Constable Durka's evidence.
4. The prosecutor did not, in his closing address, 'concede' that Mr Tran was not kneeling at any stage while the appellant struck or stabbed Mr Tran. The relevant passage in the prosecutor's closing address reads (ts 1148):

And you'll recall I made the point that all we saw in that footprint identified to Mr Tran were the balls of his feet pointing towards the couch and you can come to your conclusions about that, members of the jury. I would suggest that the balls of your feet on the floor with your heels raised indicate that you were kneeling down.

I put that to the accused but he said that didn't happen but you know that there were a number of significant injuries inflicted on Mr Tran whilst he may well have been in that position. The wounds to the back of his neck, for example. The accused says he can't remember any of that, doesn't know how that happened but clearly he inflicted those injuries, members of the jury, and [a] possible explanation as I suggested to him was that he was kneeling down at the time.

1. Grounds 7.1, 7.2, 7.3 and 7.4 are without merit. Leave to amend the grounds of appeal by the addition of ground 7 should therefore be refused.

1. Proposed ground 8 alleges, in essence, that the prosecutor's cross‑examination of the appellant and the prosecutor's address to the jury were 'misleading, unduly annoying, harassing, offensive and oppressive' and were calculated 'to elicit a prejudicial and unreasonable verdict by the jury that was unsupported by the evidence'.
2. The appellant appears to be asserting in support of ground 8 that the prosecutor's closing address misled the jury and consequently the jury's verdict of guilty of murder was unreasonable and unsupported in that the verdict was based upon the prosecutor's misleading conduct.
3. Ground 8 relies upon the contention that the State's case at trial was that there was an 'alternative version of events that [the appellant] slit [Mr Tran's] throat from behind while [Mr Tran] was on his knees facing the couch'. It is true, as we have indicated in considering ground 7, that the prosecutor asked questions to that effect in his cross‑examination of the appellant. However, the State's case was not put on the basis that the appellant must have inflicted the fatal wound to Mr Tran's neck while Mr Tran was kneeling. Rather, the proposition that was put to the appellant in cross‑examination was that Mr Tran was kneeling at some stage while the appellant struck or stabbed Mr Tran. The appellant disavowed that proposition.
4. As we have noted in considering ground 7, the prosecutor did not act improperly in putting to the appellant a scenario that was different from the version of events described by the appellant in his evidence‑in‑chief. In particular, there was nothing improper or misleading in the prosecutor putting to the appellant that Mr Tran was kneeling at some stage while the appellant struck or stabbed Mr Tran.
5. The relevant passage from the prosecutor's closing address is set out at [271] above. The prosecutor did not, in that passage or elsewhere in his closing address, misrepresent the evidence that was material to the issue raised in ground 8.
6. It is significant that, at the conclusion of the prosecutor's closing address and before defence counsel commenced his closing address, the appellant's competent and very experienced criminal defence barrister raised with the trial judge and the prosecutor two alleged misstatements by the prosecutor in his closing address (ts 1167 ‑ 1171). One of the alleged misstatements related to whether a particular T‑shirt had been worn by Mr Tran. The other related to the evidence of Dr Cadden about the wound to Mr Tran's jaw. However, defence counsel made no complaint of the kind now sought to be raised by the appellant in ground 8.
7. We are satisfied, upon our examination of the trial record, that the prosecutor's cross‑examination of the appellant and the prosecutor's closing address to the jury were not misleading, unduly annoying, harassing, offensive or oppressive as alleged in ground 8. We are also satisfied, upon our examination of the trial record, that the prosecutor's cross‑examination of the appellant and the prosecutor's closing address were not calculated to elicit a prejudicial or unreasonable verdict by the jury that was unsupported by the evidence.
8. As we have explained, in the context of ground 7, the prosecutor sought fairly to advance the State's case at the trial. Also, as we have explained in the context of grounds 3 and 4, the jury's verdict of murder was not unreasonable and the verdict is supported having regard to the whole of the evidence at the trial (and the additional evidence that is admissible in the appeal) including having regard to the defences under s 244 and s 248 of the Code.
9. There is no basis for impugning the jury's verdict of guilty of murder by reason of the manner in which the prosecutor conducted the State's case at trial.
10. Ground 8 is without merit. Leave to amend the grounds of appeal by the addition of ground 8 should therefore be refused.

1. We would make orders in the appeal to this effect:

(a) The appellant's oral application in an appeal for leave to adduce additional evidence in the appeal, namely an affidavit of Luisa Calabro sworn 17 May 2021 and a statutory declaration of Ms Calabro made 8 July 2021, is granted, subject to the rulings on admissibility that we have made in these reasons.

(b) The appellant's application filed on 7 July 2022 for leave to adduce additional evidence in the appeal, namely the affidavit of Bonar Levison sworn 6 July 2022, is granted, subject to the rulings on admissibility that we have made in these reasons.

(c) The State's application filed on 3 September 2021 for leave to adduce additional evidence in the appeal, namely an affidavit of Clayton Woodhouse sworn 31 August 2021, is granted.

(d) The appellant's applications filed on 28 July 2022 and 27 March 2023 for leave to amend his grounds of appeal by the addition of proposed grounds 5, 6, 7 and 8 are refused.

(e) The appellant's application filed on 27 March 2023 for leave to adduce additional evidence in the appeal, namely Dr Victoria Pascu's report dated 7 March 2023, is granted.

(f) The appellant's application filed on 27 March 2023 for leave to adduce additional evidence in the appeal, namely Professor David Joyce's report dated 10 September 2019, is refused.

(g) The appellant's application filed on 13 April 2023 for leave to file submissions is granted.

(h) The appellant's applications for leave to adduce additional evidence in the appeal from the appellant are granted, subject to the rulings on admissibility that we have made in these reasons.

(i) The appellant's application filed on 4 January 2023 for leave to adduce additional evidence as to why it was unreasonable for the appellant to call the police prior to killing Mr Tran is granted.

(j) The oral evidence given by the appellant, Ms Calabro and Mr Woodhouse at the hearing of the appeal is admitted as additional evidence in the appeal.

(k) Leave to appeal is refused.

(l) All other outstanding applications are dismissed.

(m) The appeal is dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[1] Clarke v The State of Western Australia [2018] WASCA 14 [231] ‑ [246].

[2] Huggins v The State of Western Australia [2018] WASCA 61 [384] ‑ [397] (Buss P, Mazza & Beech JJA).

[3] Rankins v The State of Western Australia [2018] WASCA 138 [56] ‑ [69] (Buss P).

[4] Leahy v The State of Western Australia [2021] WASCA 66 [76] (Buss P, Vaughan & Hall JJA).

[5] McMahon v The State of Western Australia [2010] WASCA 143 [24] ‑ [27].

[6] Colley v The State of Western Australia [2015] WASCA 79 [29] ‑ [33].

[7] Morgan v The State of Western Australia [No 2] [2019] WASCA 185 [205] ‑ [208] (Buss P, Mazza & Mitchell JJA).

[8] Wark v The State of Western Australia [2023] WASCA 66 [329] ‑ [342] (Buss P, Mazza & Vaughan JJA).

[9] Thorns v The State of Western Australia [2022] WASCA 127 [148] ‑ [149] (Mazza, Mitchell & Beech JJA).

[10] Liyanage v The State of Western Australia [2017] WASCA 112; (2017) 51 WAR 359 [198] (Martin CJ, Mazza & Mitchell JJA).

[11] Whitehorn v The Queen [1983] HCA 42; (1983) 152 CLR 657, 663 ‑ 664 (Deane J).

[12] Goedecke v The State of Western Australia [2013] WASCA 25 [36].

[13] JJS v The State of Western Australia [2014] WASCA 136 [134] (Martin CJ; Pullin JA agreeing & Buss JA relevantly agreeing).

[14] MAM v The State of Western Australia [2018] WASCA 35 [101] - [108] (Martin CJ; Beech JA agreeing & Hall J agreeing generally).