Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Criminal law and procedure - Whether warning required in relation to bad character and partiality of witnesses - Whether miscarriage of justice in failure to warn - Unreasonableness of jury's verdict

Criminal Appeals Act 2004 (WA), s 30(3)

Evidence Act 1906 (WA), s 50

1 BUSS JA: I have read a draft of the reasons to be published by Murray AJA. I agree with his Honour that the appeal should be dismissed. My reasons are set out below.

2 The appellant and the deceased, Milan Tomasevic, were close friends. On the night of Monday, 13 September 2004, the appellant and Tomasevic were at Kenneth Casley's house in Balga. Also at Casley's house that night were Brendan Magee (a friend of Casley's), Steven Singleton (Casley's cousin who lived with Casley at that house) and Matthew Hayden (a friend of Singleton's and Casley's). On the night of 13 September 2004, Tomasevic was stabbed at the Balga house, and later died from his wounds. The appellant was charged with his wilful murder. After a trial before McKechnie J and a jury, the appellant was convicted of wilful murder. He appeals to this court against his conviction.

Ground 1: The Learned Trial Judge erred in law by failing to instruct the jury as to the need for careful scrutiny of the sworn evidence given by Kenneth Casley and Brendan Magee, given their status as persons implicated in drug use and sale, persons of generally bad character, and persons who had their own interests to serve, thereby giving rise to a substantial miscarriage of justice.

Ground 2: The jury's verdict of guilty is incapable of being supported, having regard to the evidence.

4 The nature of the challenge to the jury's verdict in grounds 1 and 2 requires a careful examination of the evidence at the trial.

5 Casley had known the appellant and Tomasevic for a month or two before the killing, and had bought amphetamines from them, including during September 2004, for personal use. The appellant and Tomasevic would visit Casley's house every couple of days, and Casley would buy between about $50 and $200 worth of amphetamines each time, spending in total about $600 a week. Casley agreed that he had a significant addiction to amphetamines, but denied that he was involved in selling the drug. Casley said that the appellant and Tomasevic seemed like 'best friends'. The appellant had stayed overnight at Casley's house on a few occasions. A couple of days before 13 September 2004, the appellant and Tomasevic had brought some equipment to Casley's house, set it up in a spare room, and attempted unsuccessfully to manufacture amphetamines. Casley said he allowed that to occur in his house because he would obtain, in return, free drugs. He did not assist in the attempted manufacturing or setting up of the equipment. Singleton was not allowed into that room, and generally was not allowed to bring friends to Casley's house. (ts 115 - 118, 137, 149 - 157)

6 On 13 September 2004, Casley arrived home at about 8pm. At that time the appellant was at the house, and Tomasevic arrived later. Casley was expecting them that night. Hayden and Singleton were also at the house. Casley said Tomasevic arrived in a white hire car. Casley said he usually saw the appellant driving a white car, but had also seen the appellant and Tomasevic driving a little black car. (ts 118-119, 152, 158)

7 Casley, Magee, Tomasevic and the appellant ended up in the kitchen. Tomasevic was 'bagging up' the drugs (sorting the amphetamines into smaller bags). They had been in the kitchen for no longer than 5 minutes, and had just opened cans of bourbon, when the appellant turned and looked at Magee, then turned to Casley and smiled and winked at him, and then 'within a split second' picked up a knife and drove it into Tomasevic's neck. Casley said the appellant and Tomasevic had been speaking in their native language (Serbian) before they had gone into the kitchen, but nobody was speaking when the appellant stabbed Tomasevic. (ts 119 - 121, 137 - 138) Casley described the knife entering at the top of Tomasevic's neck, in the spine. He said he saw the appellant stab Tomasevic once only. (ts 122, 128, 175)

8 Casley said that what happened next was 'all a blur'. He thought he froze. Magee screamed and ran. The appellant walked, calmly, out of the kitchen. Tomasevic was screaming and saying something in his native language, and Casley thought Tomasevic must have also gone past Casley out of the kitchen, because when Casley left the kitchen, he saw Tomasevic staggering backwards and trying to pull the knife out of his neck. The appellant had grabbed a spirit level from a pool table in the lounge room, walked towards Tomasevic, and hit him repeatedly with it. Tomasevic was then crouched on the ground. At that point, Singleton had come out of his room. Casley said to him that the appellant had gone mad, had stabbed Tomasevic, and was trying to kill Tomasevic, or words to that effect. Singleton replied that Casley had to stop the appellant, and that the appellant was going to kill Tomasevic, or words to that effect. Casley said he was in a panic. He grabbed a pool cue, and attempted to hit the appellant, but struck a door frame instead. The appellant then turned to Casley and said 'I'll kill you too'. Casley ducked the spirit level, ran out the front door, across the road, and slipped on the grass verge and snapped his wrist. He then got to his feet, kept running and then hid in some bushes. Casley had not seen Hayden at the house since the stabbing. He telephoned Magee and met up with him and Hayden, who was with Magee, at the other end of the road. Magee and Hayden said they had seen the car that Tomasevic had arrived in, drive away, so they all went back to Casley's house, picked up Singleton, and Casley drove to the hospital. (ts 122 - 126, 176 - 182)

9 Casley waited at the hospital for a couple of hours, and was told that the bone in his wrist had to be reset. He told the hospital staff to bandage his wrist for the time being, and that he would return later. This was because he wanted to check if his house was locked, and if anyone was still there. Only Singleton had been with Casley at the hospital, and Singleton went back to the house with him. Hayden and Magee had gone their own way. Casley did not telephone any emergency services at that time because he was scared and panicking. When Casley and Singleton arrived back at the house, they looked around, did not find anyone, and cleaned and mopped up the blood. There was not very much blood to clean up. Casley returned to the hospital at about 7 am or 8 am, stayed there overnight, and was discharged the next afternoon. (ts 126 - 127, 162, 187 - 188, 190)

10 While cleaning, Casley and Singleton found the spirit level on the floor in the house, wiped it, and put it on top of a linen cupboard. Before returning to the hospital, Casley found, in the driveway of the house, the knife that had been used to stab Tomasevic. He grabbed some paper from a bin, picked up the knife by the blade, did not clean it, and put it into the engine bay of his car, which was parked in the garage. Casley said he kept the knife as evidence, in case it was needed. He did not hide it. (ts 127 - 128, 193 - 195)

11 Casley denied that he killed Tomasevic. He denied that Magee killed Tomasevic. Casley denied that he returned home, before his broken wrist had been fully attended to at hospital, to 'get rid of the evidence and clean the scene', but said he could not leave his house in that state, did not know what was going on, did not realise it was 'that serious', and thought the appellant might have 'snapped out of it' and taken Tomasevic to the hospital. He had been given some morphine at the hospital. There was not much blood to clean, and Casley had directed Singleton in relation to the cleaning because he had a broken wrist. He denied that he had hidden the spirit level and the knife, but said he was not thinking and did not know if the appellant was going to come back and kill them. Casley went to the police on 16 September 2004. (ts 139 - 140, 175 - 176, 189 - 192, 195)

12 Casley denied he had been on a 'two-day bender' in the two days leading up to 13 September 2004. He said that he last had amphetamines at about lunchtime on the day of the stabbing. (ts 152, 159 - 160) However, Casley agreed that, at the hospital, he had told the medical staff that he had had three or four bourbons, but was not sure if he had told them he had taken amphetamines about one a half hours earlier. (ts 162) Casley denied telling the medical staff at the hospital that he had been on a 'two-day bender', but said he had told them he had been up for two days 'partying', and consuming amphetamines and bourbon. He had not eaten much during that time. (ts 163 - 165)

13 Casley agreed that, on the night of the stabbing, he had had a conversation with Tomasevic, Magee and the appellant about the possibility of Casley and Magee selling drugs for Tomasevic to someone in Midland. However, he denied that this possibility had been discussed before that evening, and denied that Tomasevic had left the house for a short period that evening to collect some amphetamines for Casley and Magee to sample. (ts 166 - 169)

14 Casley denied that he and Magee had planned to steal or take drugs from Tomasevic and the appellant. He said that, when he and Singleton were cleaning the house, they swept up the drugs which Tomasevic had been sorting before he was stabbed, which had scattered over the floor, and put them in the bin, because the drugs had dirt through them. (ts 169-172) Casley denied that he and Magee had jointly decided to blame the appellant for the murder. (ts 196)

15 Casley also denied that, before Tomasevic was stabbed, he had told the appellant to stand outside the kitchen door to stop the others (Singleton and Hayden) from entering. (ts 172)

16 Casley was questioned about his prior offences. He agreed that he had been convicted, on 7 August 2001, in the Midland court of petty sessions, on charges of fraud and receiving stolen property, offences for which he received a fine (of about $300). The offences related to selling a stolen DVD player at Cash Converters. Casley said he did not know it was stolen. He had got it from a friend and told someone at Cash Converters that it was his (which constituted the 'fraud' charge). (ts 196) He said he needed cash at the time, and sold the DVD player for $50 to buy food and fuel. Casley was charged about two months later, and pleaded guilty. He had no other criminal record. (ts 198)

17 Magee was questioned about his criminal record. At the time of the trial, he was on remand at Casuarina prison in respect of charges of assault occasioning bodily harm, which allegedly occurred in 2002. He had pleaded not guilty and was awaiting trial. He was also in custody at that time for breach of an intensive supervision order and was serving a sentence which had previously been suspended. (ts 202 - 203)

18 Magee had known Casley for years. He met the appellant, Tomasevic and Singleton for the first time on 12 September 2004, the night before the stabbing, at Casley's house. He was not sure if he had also met Hayden that night, or had met him for the first time on 13 September 2004. Magee had gone to Casley's house on 13 September 2004 (and the night before) because he had not seen Casley for about a year, they used to be best friends, and they were catching up for drinks at his house. When Magee arrived at the house on 13 September 2004, the appellant, Singleton and Hayden were there. Tomasevic arrived a little later. (ts 204 - 206, 214 - 215, 218, 224)

19 After a while, Magee went into the kitchen with Tomasevic, the appellant and Casley. Tomasevic was sorting some drugs, and had agreed to give Magee drugs on credit to sell. Magee would pay Tomasevic some money from the sale, and retain a profit. (ts 206) Magee said he saw the appellant grab a knife from the knife block, grip it with both hands, and stab Tomasevic through the back of his neck. He only saw him being stabbed once. He said that before the appellant stabbed Tomasevic, they were talking in their native language (Serbian) and there did not appear to be any argument. Magee said that everyone seemed happy in the kitchen. However, he said the appellant had been behaving 'a bit funny' earlier in the evening, 'like he was thinking too much or something' and not paying attention to anyone. The appellant was walking around and wandering off. Magee thought he was just 'looping out' as a result of using amphetamines. After the appellant stabbed Tomasevic, Magee panicked, and ran out of the house. He remembered yelling to the others in the house to get out quickly. Magee had trouble opening the front door, and just before he went out, he looked back and saw the appellant near the pool table in the lounge room. The appellant 'looked a pretty crazy fellow'. Magee went down the street. Hayden also left the house and went down the street. They hid. Magee called the '000' emergency number, and said someone had been stabbed, and the name of the street, but not the address. Magee saw the appellant drive past in Tomasevic's car. Magee and Hayden met up with Casley, who had also fled, and they returned to the house. They went to the hospital with Casley, and Magee then went home. (ts 208 - 212, 222, 231 - 233).

20 Since the night of the stabbing, Magee had spoken to Casley about the events which occurred, but he never saw Singleton or Hayden again. (ts 214)

21 Magee agreed that he was a user of amphetamines, and used the drug almost every weekend, but was not a heavy user. He was selling drugs to support his amphetamines use. Before going to Casley's house on the night in question, Magee did not remember having discussed the possibility that he and Casley would be receiving drugs from some other people that night to on-sell. He was expecting to go there only to have a drink with Casley, as they had done the night before. (ts 215, 219)

22 Magee denied that he and Casley 'set up' Tomasevic to steal drugs from him. He denied that he stabbed Tomasevic, and denied that Casley stabbed Tomasevic. (ts 222, 249)

23 Magee said that after he arrived at Casley's house, the appellant had asked him for a lift home later on, and Magee had agreed. (ts 224) The appellant was acting weirdly or strangely, and had winked at Magee a couple of times during the night. Magee thought the appellant was 'spinning out or something', but accepted the behaviour because he was used to being around people who took amphetamines, which made them behave in a variety of ways. (ts 225) He denied he was on a 'two-day bender'. At the house, before the stabbing occurred, there was some discussion between the appellant, Tomasevic, Casley and Magee about selling drugs. Magee thought that on the night in question he had a shot or two of amphetamines and two or three bourbon drinks. (ts 227 - 229)

24 Magee denied that he wanted the whole of Tomasevic's amphetamines. He merely wanted a small quantity (an 'eight-ball') to sell to some friends in Midland. He denied that he and Casley had planned to take all the amphetamines by force. He denied that he or Casley told the appellant to stand guard outside the kitchen door, so Singleton and Hayden would not enter, while Tomasevic was 'bagging' the amphetamines. (ts 229 - 231) Magee was not feeling angry that night from having taken amphetamines earlier, but was happy and having a good night because they were setting up the pool table, having drinks and getting some drugs. (ts 233)

25 Magee was questioned about the pending charges for assault occasioning bodily harm (the trial judge told Magee he would receive a certificate to the effect that any answers he gave would not be admissible in evidence against him in criminal proceedings, other than in a prosecution for perjury in relation to those proceedings). He had pleaded not guilty. One charge was in relation to the brother of his then girlfriend, and the other was in relation to his father. (ts 240 - 242) Magee had also been convicted and fined ($1,000) on 13 May 2003, at the Midland court of petty sessions, for receiving stolen goods and for fraud. On 10 October 2003, in the same court, he was convicted and fined ($100) for possession of unlicensed ammunition (Magee said he used to collect bullets), convicted and fined ($325) for possession of a smoking implement and possession of a prohibited drug (marijuana), convicted and fined ($300) for possession of a controlled weapon (Magee described this as the nose of a swordfish), and convicted and fined ($250) for possession of an unlicensed firearm (Magee described this as an old collector's gun). On 12 May 2004, in the same court, he was convicted and fined ($200) for possession of a prohibited drug, fined ($100) for breach of bail, and convicted and fined ($500) for indecent assault. On 21 October 2004, in the same court, he was fined ($200) for breach of bail. On 22 November 2004, at the Perth court of petty sessions, he was convicted and fined ($200) for possession of a prohibited drug, and convicted and fined ($150) for possession of a controlled weapon (Magee said it was a fishing knife). On 4 March 2005, at the Armadale court of petty sessions, he was convicted and fined ($1,000) for possession of unlicensed ammunition and possession of a firearm, and fined ($500) for breach of a violence restraining order. On 12 May 2005, he was convicted in the District Court at Perth for burglary with intent and aggravated burglary with intent, and sentenced to a two-year intensive supervision order, and was also convicted of burglary and aggravated burglary, for which he received 18 months suspended imprisonment. (ts 242 - 247)

26 Magee clarified that the breach of the violence restraining order was in relation to an ex-girlfriend, the indecent assault charge concerned slapping a girl on the buttocks, and that his father was going to 'drop' the assault charge against him. He explained that he 'used to have a bit of a problem with getting angry', that the firearms were just 'a bit of a hobby', and that he would never aim a gun at anyone. (ts 247 - 249)

27 Hayden had known Casley for about a year or two, having met him through Singleton. Hayden met Magee for the first time on 13 September 2004. He had met the appellant a few weeks earlier, but had only met Tomasevic that night. When he arrived at Casley's house on 13 September 2004, at about 7 pm or 8 pm, Singleton and Casley were there, and Magee arrived later. He was not sure if the appellant was already at the house, or if he arrived later with Tomasevic. They set up a pool table and played PlayStation videogames. A short while after Tomasevic arrived, everyone went into the kitchen, except for Singleton who had gone to bed, and Hayden who was playing PlayStation videogames by himself in the lounge room. (ts 258 - 259)

28 The next thing Hayden remembered was that someone shouted something and he saw Magee run out the front door. Hayden got up and walked around the pool table. He saw the appellant walking backwards out of the kitchen. Tomasevic followed forward after him, holding his arm behind his neck, and the appellant then picked up a spirit level from the pool table and started hitting Tomasevic with it. Hayden did not see what Tomasevic was reaching for or if he had anything in his hands, but said that Tomasevic held up his other hand to defend himself against the appellant hitting him with the spirit level. Hayden said that, at first, the appellant seemed to be fending off Tomasevic as he was walking forwards, but when Tomasevic did not stop, the appellant started hitting him violently. At that point, Hayden ran from the house. After the initial shout that he heard, Hayden did not remember anything being said or shouted, or seeing Casley or Singleton, before he left the house. (ts 259 - 263, 268 - 272)

29 Hayden ran down the road and found Magee. He said Magee was scared, and so was he. They met up with Casley, who had also run down the street, and went back to the house. As they were returning to the house, he saw Tomasevic's white car leaving the street. Hayden left Singleton at the hospital with Casley. (ts 263 - 264, 273)

30 Hayden said he knew that drug related activity occurred in Casley's house, but he did not get involved in it. (ts 265 - 266) He agreed that he said in his police statement that Casley did not want Singleton to go back to the house, while Casley was in hospital, and so Singleton stayed with Casley at the hospital. (ts 273)

31 Singleton is Casley's second cousin, and was living at Casley's house for about three or four months before 13 September 2004. Singleton had known the appellant and Tomasevic for about a week or two, through Casley, and they had visited Casley's house a couple of times. He met Magee for the first time on 13 September 2004. Hayden had been a friend of Singleton's for six or seven years, and had been to the house a couple of times. (ts 277 - 279)

32 On the night of 13 September 2004, Singleton was in his bedroom when the others arrived, but he believed that Hayden arrived first, then the others. During the evening, he had been lying on his bed. He had earlier been playing PlayStation videogames with Hayden but then had an argument with Casley about cleaning up the house, after which he went to his room. He stayed in his room until he heard a scream. He walked into the hallway, saw Casley crouching near the doorway holding a pool cue, and saw the appellant hitting Tomasevic, with big swings, with a spirit level. He saw the appellant hit Tomasevic five times, on the top of his head. Tomasevic was just holding the back of his neck. He did not see Tomasevic holding anything, or any injuries to him. He then saw the appellant chase Casley out the door, and Singleton went back to his room. He said he did not know why he went back to his room, that he may have been scared, and he thought they were just having a fight. He emerged from his room about 20 minutes later, and walked to the front porch of the house. He did not see anyone. Singleton went back into the house and played PlayStation. While he was doing that, the appellant walked into the house. The appellant said something about cleaning up the house, in a normal tone of voice, but 'didn't look like he was all there at the time'. Singleton did not understand what he was talking about. The appellant then left. After about half an hour, Hayden and Casley came back to the house, and told Singleton he had to leave. Singleton went to the hospital with Casley. (ts 280 - 284)

33 When Singleton and Casley returned from the hospital, Casley told Singleton to clean the blood from the walls. He did not see any knives in the house, but put the spirit level on top of the linen cupboard because Casley told him to do so. Singleton, under Casley's instructions, scrubbed everything, including the cupboards and the walls. He cleaned the front porch and the kitchen. Casley did not really help with the cleaning because he had a broken wrist. Singleton said, in relation to the blood, that there was a 'fair bit', 'a lot', 'spots', and 'splashes', and described the cleaning, which took him about an hour or two. Singleton's brother then came to take Singleton to work, but they did not go to work, and instead took Casley back to the hospital. Singleton saw the knife on the footpath, but he kept walking, and Casley did something with it. (ts 285 - 286, 309 - 312, 316 - 319)

34 Singleton agreed that Casley decided which of Singleton's friends could come to the house, Casley did not trust Singleton's friends, Casley directed Singleton on the household chores, and Singleton did what Casley told him to do. Singleton had seen Casley sometimes behave violently. Casley was an amphetamines user in September 2004, but he did not really become violent when he used the drug. He agreed that Casley was not working in September 2004, that Singleton tried to keep his life separate from Casley's, and that Singleton would never 'cross' Casley. He denied that he had spoken to Casley about the trial or that Casley had told him what to say in evidence. Singleton went to the police a few days after the stabbing, and signed a statement at about that time. (ts 287 - 290)

35 The appellant had stayed at Casley's house on the night before the stabbing. Singleton was home, but Casley was out 'partying'. While Casley was out, the appellant showed Singleton the drug set-up in the spare room. Singleton agreed that Casley would be 'very upset' if he knew Singleton had gone into that room. Singleton denied that Casley had ever hit him. Singleton agreed that there had been a bad smell in the house for about a week as a result of a failed attempt to manufacture amphetamines a week earlier. (ts 292 - 294)

36 Singleton agreed that his evidence that he heard a scream was not in his police statement, but denied that Casley had told him to say it. Singleton's police statement said that he heard a hollow, banging noise, and he thought they were play fighting. Singleton said that Casley was going to try and stop the appellant from hitting Tomasevic, but immediately agreed that that evidence was not in his police statement, and agreed that Casley probably told him that. Further, Singleton agreed that his police statement did not mention seeing the appellant chase Casley from the house, but Singleton insisted he saw that. Singleton also agreed, when prompted by counsel during cross-examination, that he heard the appellant say 'I'll kill you too' to Casley, agreed that this was not in his police statement, but denied that Casley had told him to say that. (ts 299 - 307) Singleton changed his evidence during the course of giving it, and finally said that a banging noise (he was not sure if he did hear a scream) alerted him to come out of his room, he saw the appellant hitting Tomasevic with the spirit level, saw Casley crouching on the floor between the kitchen and the hallway, and went back to his bedroom. (ts 313 - 314) He did not see the appellant chasing Casley from the house. (ts 307 - 308) Singleton said he was not afraid that Casley would do any violence to him. (ts 316)

37 Mr Phillip Gough lives on a property about 1 km from Lake Gnangara. Between about 10 pm and 10.30 pm on Tuesday, 14 September 2004, he was woken by the sound of his dogs barking loudly. He let the dogs out and followed them down to a fence, where they were barking at the appellant, who was on the other side. The appellant said he had walked a long way with a friend, was thirsty, and wanted some water. Mr Gough said the appellant seemed very agitated and nervous, but agreed that he was not aggressive, and sometimes called Mr Gough, 'Sir'. Mr Gough did not see anyone else. The appellant said his friend had walked off. He also said he had parked his car near the lake. Mr Gough asked the appellant to take his hand out of his pocket, and saw that he was holding what looked like a car key. Mr Gough told the appellant to leave, and then made a report to the police. It was conceded that it was the appellant to whom Mr Gough spoke that night. (ts 250 - 257)

38 The statements of various witnesses were read into evidence.

39 Ms Jillian McMahen stated, relevantly, that on the morning of Tuesday, 14 September 2004, she was driving and saw the appellant by his car on the side of the road. She stopped to offer assistance, but he needed fuel, which she could not provide. Ms McMahen said the appellant appeared to be acting strangely, had a lot of energy, and was very jumpy. The appellant said he would stop another car. Ms McMahen drove off. (ts 320 - 322)

40 Mr Matthew Paxman also saw the appellant at the side of the road with his car on the morning of Tuesday, 14 September 2004. The appellant waved him down and asked for some petrol. Mr Paxman said the appellant appeared to be in a hurry. After discussion, Mr Paxman went home to get a jerry can, filled it with petrol at a service station, brought it to the appellant about 15 minutes later, and poured the fuel into the appellant's car. Mr Paxman introduced himself as 'Matt' and the appellant said 'My name is Marcus', but almost immediately said, 'That's not my real name. I don't like giving out my real name'. The appellant obtained Mr Paxman's contact details so he could pay him for the fuel. Mr Paxman said that while he was with the appellant, the appellant was very agitated and was shaking. (ts 322 - 325)

41 About midday on 14 September 2004, Mr Frank Brown noticed the white car which the appellant had parked in bushes near Lake Gnangara. He and another passerby concluded that, given the position in which the car was parked and the track it would have travelled to get there, it was likely to have been stolen and dumped. Mr Brown made a note of the car make and registration, and reported it to the police. (ts 325 - 328)

42 Ms Suzanna Chatfield and her father found Tomasevic's body on the morning of Wednesday, 15 September 2004. She was driving with her father and they had stopped for her father to go to the toilet. Ms Chatfield's father then called her to look at something which appeared to be a body in the bush. Ms Chatfield went closer and confirmed that there was a body lying face down on the ground, with a red and black shirt covering its head and part of its right arm. (ts 329 - 330)

43 Mr Clifford Howe was the police officer who first investigated the site of the body after a report from the Chatfields. He said the body had the appearance of having been dragged by the feet and left at that location, because the arms were stretched out. There was clothing covering part of the head and arms, the shoes had been removed but were near the body, and the body was naked with the underpants pulled down to just above the knees. In the underpants there appeared to be a piece of white tissue paper. (ts 330 - 331)

44 The statements of Mr Austin Whiteside and Mr Steven Winters were also read into evidence, but it is unnecessary to summarise them.

45 Milomir Tomasevic, Tomasevic's father, gave evidence through an interpreter. (ts 62) Mr Tomasevic said that Tomasevic was aged 19 as at 13 September 2004, and he last saw him on that day, before Tomasevic went out for the evening. He said that Tomasevic did not use a hire car. He knew the appellant, had met him on many occasions, and believed him to be Tomasevic's best friend. Mr Tomasevic said that the first time he went to the appellant's house was when he was looking for his son. (ts 63 - 65, 75)

46 Mr Tomasevic became worried about Tomasevic the next morning (Tuesday) when he realised he had not been home. Tomasevic usually came home, and would telephone on the odd occasion that he was not coming home. Mr Tomasevic tried to call Tomasevic's mobile telephone, but it was switched off. Mr Tomasevic said Tomasevic would never switch off his telephone. Mr Tomasevic rang the police on Wednesday. He tried to contact Tomasevic's friends. He tried to call the appellant on a landline at his parents' house where he lived, on Tuesday, but there was no answer. Finally, his wife managed to contact the appellant's younger brother on the telephone, but the appellant would not speak. Mr Tomasevic then went to the appellant's house. (ts 67 - 69)

47 At the appellant's house, five or six people (including the appellant, his father, his mother and his brother) were at the front of the house, talking loudly, near Tomasevic's car, which was parked on the lawn between their house and the house next door. Mr Tomasevic asked the appellant repeatedly, in Serbian, where Tomasevic was, and also why the car was there and where the keys were. The appellant kept saying that he had no idea, and that he did not know. Mr Tomasevic said the appellant looked very pale in the face, and would not look him in the eye when speaking to him. Further, the appellant was behaving differently, in that he kept saying 'I don't know' and waving his hands in front of his face, whereas, at earlier meetings, the appellant had a conversation with Mr Tomasevic. After Mr Tomasevic had questioned the appellant, and voices were raised, the appellant tried to run away, but his father persuaded him to go back into the house. Mr Tomasevic then reported to the police that Tomasevic was missing. (ts 69 - 73, 75 - 77)

48 After a few hours, Mr Tomasevic and a friend returned to the appellant's house. The appellant's mother invited them in, and Mr Tomasevic asked the appellant the same questions. The appellant was lying in bed and said again that he did not know, that he had no idea, but said 'one hundred per cent that Tomasevic was alive'. Mr Tomasevic went to the police and told them about his contact with the appellant. On Wednesday evening, the police told Mr Tomasevic's daughter that Tomasevic's body had been found, but she did not inform Mr Tomasevic until Thursday morning. (ts 73 - 75)

49 About a month later, Mr Tomasevic received a telephone call from the appellant. The appellant told Mr Tomasevic that he did not kill Tomasevic. Mr Tomasevic denied the appellant told him that 'two Aussie boys' did it. (ts 77 - 78)

50 Marijana Tomasevic, Tomasevic's sister, also gave evidence. She said that the appellant was Tomasevic's best friend. Ms Tomasevic was out of the house on Tuesday and became aware on Wednesday afternoon that Tomasevic was missing. She tried to telephone the appellant a couple of times on his home number. She spoke to the appellant's brother, then the appellant. Ms Tomasevic asked the appellant about Tomasevic's whereabouts over the last few days. The appellant said he had not seen Tomasevic since Sunday, and he had been at home for a few days. Ms Tomasevic said the appellant was 'pretty sleepy' and did not really want to talk. Ms Tomasevic called the appellant back half an hour later, and asked him the same questions. The appellant then told her he had come home the night before, being Tuesday night. (ts 80 - 82, 85 - 86)

51 Later that day, Ms Tomasevic received a telephone call from a Ms Pauline Sale, who told her that she had hired a white car for Tomasevic. Ms Sale told Ms Tomasevic that the car had been found near Gnangara Road and Alexander Drive. (ts 89 - 90)

52 In the late afternoon, Ms Tomasevic went to see the appellant at his house and spoke to him alone. The appellant was in bed, and when she asked where Tomasevic was, he said he did not know and wanted everyone to stop 'bugging' him. The appellant was facing the wall, and Ms Tomasevic pulled him to face her, but he closed his eyes and would not look her in the eye. She said that he was not behaving normally. This time, he told Ms Tomasevic that he had been home for a few hours. He said he knew that Tomasevic was 'a hundred per cent okay', he loved Tomasevic, and would do anything for him. Ms Tomasevic said she was going to the police. On Wednesday night, the police informed her that Tomasevic's body had been found. About a month later, the appellant telephoned. Ms Tomasevic agreed the appellant had said he did not kill Tomasevic, but denied he said that 'two Aussie boys' had done it. (ts 82 - 85)

53 Ms Pauline Sale met the appellant and Tomasevic through her daughter's boyfriend. She saw Tomasevic frequently, and the appellant rarely. They appeared to her to be best friends. Ms Sale said that Tomasevic drove a small black car. In late August or early September 2004, she hired a white car for a week, jointly under her name and the name of a friend of the appellant and Tomasevic, called Dom. She hired the car at Tomasevic's request, who needed a car because his was at the panel beaters. Tomasevic told her that Dom needed a car and that Tomasevic was scared. Tomasevic was not eligible to hire a car himself. After a week, on the Friday before the stabbing, the car hire company contacted Ms Sale and informed her that the car had not been returned. Tomasevic begged her to extend the rental until Monday, 13 September 2004 and she did so. She sent Tomasevic a mobile telephone text message on Monday, 13 September 2004, reminding him to return the car, but received no response. When the car had still not been returned on Tuesday, 14 September 2004 or Wednesday, 15 September 2004, Ms Sale tried repeatedly to contact Tomasevic. She also contacted Tomasevic's parents, and others. She tried, unsuccessfully, to contact the appellant. (ts 91 - 96, 100 - 102)

54 On Wednesday afternoon, Ms Sale went with her partner to see the appellant at his house. The appellant came to the door, looking as though he had just woken, and Ms Sale asked him where Tomasevic was. He said he did not know, and he had last seen Tomasevic a couple of days ago. He said that he did not know where the hire car was. Ms Sale was at the front of the house when Mr Tomasevic arrived. Mr Tomasevic gave Ms Sale his home telephone number in case she heard anything about Tomasevic. (ts 96 - 99)

55 Ms Sale agreed that her partner was buying drugs from Tomasevic. She also agreed that a few weeks before Tomasevic's death, her partner had purchased 100 ecstasy tablets from Tomasevic and owed him a few thousand dollars. Ms Sale's partner also owed Tomasevic money for a stolen motorcycle that he had bought from him. Ms Sale also agreed that during the period the car was hired, she walked in on her partner, the appellant, Tomasevic and Dom, examining some firearms in the garage of her house. (ts 109 - 110)

56 Ms Sale did not know Casley, Magee, Singleton or Hayden. (ts 110)

57 Ms Sale made two police statements, one in September 2004, and one just before the trial in 2006, which was different from her original statement. She admitted, after being shown her 2004 statement, that she had been informed by the car hire company, that the car had been found and where it was found, on Tuesday, which was the day before she went to see the appellant at home. On 16 September 2004, Ms Sale's partner and her son had gone to the Gnangara pine plantation to ride their motorcycles. Ms Sale's original statement said she had dropped her partner and son off with their motorcycles. However, the later statement said that her partner had driven there. Ms Sale explained she was protecting her partner because he did not have a driver's licence at that time. (ts 104 - 108, 112 - 113)

58 Dr Gerard Cadden is a forensic pathologist. (ts 337).

59 Dr Cadden attended the site of the body, and saw that it was lying face down and partially clothed. He described the body as being naked from the neck to below the buttocks, where the underpants had been pulled down, and the socks were still on. Other clothing was congregated about the head and over the upper arms, which were extended above the head, with the hand surfaces exposed. The body surfaces showed injury consistent with having been dragged through the bush, as well as injury of more significance towards the head and shoulder region. The police secured a white object that was located in the underpants. (ts 339 - 341)

60 Upon external examination, Dr Cadden found injuries to the head, neck and shoulder region that were potentially relevant to the cause of death, as well as other injuries consistent with being dragged through the bush. Dr Cadden found five wounds in the head and shoulder region, and others on the skin surface. (ts 342 - 344)

61 Two wounds were on the scalp surface. They were lacerations in the scalp surface, and exposed the skull. Dr Cadden said those lacerations would have been caused by a blunt impact onto that surface, and could have been caused by any number of objects. However, the lacerations would not have been caused by a sharp or bladed object. Dr Cadden described the length, depth and direction of the wounds. He was shown the spirit level and said that the two lacerations were consistent with having been caused by it, being a blunt object. He considered that one would need at least moderate force to inflict such lacerations with the spirit level. He said that such lacerations were also consistent with having been caused by a pool cue, also being a blunt object. He said it would be difficult to accept that any of the non-bladed edges of the knife could have caused the lacerations. (ts 345 - 350)

62 The third wound was at the base of the head where it joins the neck, on the hairline, and was a stab wound. Dr Cadden said the wound was below the level of the skull, and the wound track went forward and upward (on a fairly gentle angle), and appeared to terminate towards the base of the skull. He described the length and depth of the wound. He said the wound was consistent with having been caused by an implement such as the knife. Dr Cadden found the cause of death to be the stab wound and the resultant bleeding. He estimated that such a wound, untreated, and depending on the internal damage and other factors, would allow a person to live from a few minutes up to half an hour or more. Other factors that would affect a person's length of survival after such a wound, such as any pre-existing condition, the exertion of the injured person, the knife staying in the wound, and the effect of amphetamines, were explored. Dr Cadden also said that a person would be weakened by such blood loss, and would feel faint, sweaty, clammy or distressed. The lacerations to the scalp would also cause considerable bleeding, and weakness. The victim would feel pain, and may be disorientated. Dr Cadden could not say what position the victim would have been in before being stabbed to achieve such a stab wound. He agreed that a downward wound track would be more consistent with a downward stabbing motion if the victim were standing up straight, or even bending over a table with their head down, but that he did not know the position the victim was in when he was stabbed. He agreed that there were a number of variables, for example, the height of the attacker and the victim, whether the victim was standing or bending, the degree to which the victim was bending, and the position and angle of the knife. (ts 350 - 358, 365 - 369, 371)

63 The fourth wound was on the back surface, above the right shoulder blade, where the shoulder joins the neck, towards the top of the spine. Dr Cadden described the dimensions of the wound, and said it went downwards towards the spine. The wound was consistent with having been caused by a knife. There would have been bleeding, but Dr Cadden would not anticipate that wound itself to be fatal. All four wounds would have been bleeding sources. Dr Cadden was not able to say the order in which the wounds were inflicted. The stab wounds occurred before death, and it was not easy to say when the lacerations occurred, but it was likely, in the circumstances, that they also occurred before death. (ts 359 - 361, 367)

64 The fifth wound was simply a graze on the shoulder area. (ts 361)

65 The remaining injuries on the body were caused by the body being dragged to where it was found. The scratches and scrapes were variously distributed over the body. Dr Cadden said that bruising on the body would be difficult to assess given the post-mortem changes the body had begun to undergo. There were clear injuries to the hands, but the likely explanation for such injuries was animal activity at the scene of the body. (ts 361 - 364)

66 Detective Sergeant Rodney Wilde is a member of the major crime squad. (ts 374)

67 Detective Sergeant Wilde gave evidence about how and where the body was found and the state of the body. (ts 374 - 382) He said that the deceased was identified by a tattoo, and that there were no other forms of identification found on the deceased. There were no car keys, wallet, trousers or mobile telephone. (ts 383) The police found Tomasevic's black car at the front of the appellant's house, and examined it. The car keys for that car were never located. Inside the vehicle was a newspaper dated Tuesday, 14 September 2004, but nothing else of significance. (ts 383 - 386) The white car found at Lake Gnangara was also examined. The keys were located for that vehicle, perhaps within the vehicle. There was heavy bloodstaining throughout the vehicle, and three deal bags which tested positive for traces of amphetamine (ts 386 - 397) Various items were sent for forensic analysis. (ts 397 - 398)

68 The police searched Casley's house. The knife, spirit level and pool cue were seized (ts 399). Blood swabs from the white car and from the blade of the knife matched Tomasevic's DNA profile. But the handle of the knife, the spirit level and the pool cue did not yield any DNA or fingerprints. The fingernail scrapings obtained from the deceased were inconclusive. (ts 405, 415 - 417)

69 The white object found in the deceased's underpants was a deal bag containing traces of amphetamine, wrapped in tissue paper. (ts 407, 418) Telephone records were tendered showing the calls made to and from Tomasevic's telephone on 13 September 2004. (ts 408 - 413, 423 - 426)

70 The appellant gave evidence about his childhood in the former Yugoslavia and Bosnia, and his traumatic experiences of the war in that region. The war started in 1992, when the appellant was about 7 or 8 years old. During the war, when the appellant was picking cherries in a tree, a bomb exploded, the appellant fell out of the tree and, as he was running away, he was struck by a piece of shrapnel, the size of a coffee bean, on the side of his head. He saw injured people on the street, and people with horrific injuries in the hospital. The appellant thought about the war, and had dreams about it, as it was a big part of his life. During the war, his father was separated from the family for a period of time, and his brother nearly died from a lung infection. (ts 429 - 432)

71 The appellant came to Australia with his family when he was aged about 14 or 15. He met Tomasevic in about 2002, when the appellant was about 18 years old. The appellant described his relationship with Tomasevic as being 'close mates', 'one of the closest mates', and they would see each other almost every day. The appellant was not working in the three months or so before Tomasevic's death, and was using drugs regularly. (ts 432 - 437)

72 The appellant had met Casley about three or four weeks before Tomasevic's death, because Casley wanted to buy some amphetamines. The appellant said that by that time, he was not selling drugs because of outstanding drug charges against him. In the days leading up to the night in question, the appellant and Tomasevic were trying to produce amphetamines in Casley's spare room. In exchange for the use of the room, Casley was supplied with drugs on a daily basis. The appellant would sometimes stay at that house if he was too tired to drive home. (ts 437 - 439)

73 On Sunday, 12 September 2004, the night before the stabbing, the appellant went to Casley's house, and Hayden and Singleton were there. Casley went out on Sunday night, and the appellant spent time in the laboratory in the spare room. He did not use any drugs that night and slept on the couch. He did some drug deals on Monday, 13 September 2004, and returned to Casley's house that night. At the house were Casley, Singleton and Hayden, who were having drinks. Magee arrived next, then Tomasevic. On the night in question, Tomasevic was driving a white car. All of them played PlayStation for a while, and Casley and Magee told Tomasevic that they could sell some drugs for him to someone in Midland. Tomasevic left the house for about 20 minutes to pick up some drugs, and when he returned, Tomasevic smoked some of the drugs to test them. The appellant did not smoke any drugs, but snorted some of them. (ts 441 - 447)

74 A short time later, Casley, Magee and Tomasevic went into the kitchen. The appellant was left standing at the doorway to the kitchen, because Casley instructed him to make sure that Hayden and Singleton did not find out about the drug deal. Then, the appellant turned around and saw Tomasevic come out of the kitchen with a knife in his hand, raised above the level of his head, and said to the appellant in Serbian, 'Brother, someone just stabbed me'. The appellant did not ask who had stabbed him. The appellant walked backwards quickly, grabbed a spirit level from the pool table as a reflex action and tried to push the knife out of Tomasevic's hand. He said he must have taken a swing in attempting to dislodge the knife. The appellant said it was possible he tried to hit Tomasevic with the spirit level as a result of the drugs causing paranoia. He said everything happened very quickly and it was 'all blurry'. He hit Tomasevic a maximum of two times. He may have hit him on the head or the shoulder, but he did not remember. The appellant did not remember seeing any other people in the house once Tomasevic had been stabbed, but thought he might have seen Hayden standing in the corner of the lounge room. (ts 448 - 453, 476 - 489)

75 Tomasevic ran out of the house and the appellant followed him to Tomasevic's car. The appellant told Tomasevic to give him the keys because he was going to take Tomasevic to the hospital. Tomasevic lay down in the back seat of the car, but came to the front after a while and opened the windows, and changed the tuning on the car radio. The appellant gave him a shirt from the car to hold on his head. Tomasevic then hit the appellant on the head with a juice bottle. Tomasevic told the appellant that he hit him with the bottle because he wanted to go back and kill them. The appellant was not sure who he was talking about. Tomasevic tried to reach under the seat to get a gun that was there, but hit his head. The appellant told him to lean back. (ts 452 - 454, 482, 489 - 504, 507 - 510) Tomasevic did not say anything to the appellant about the stabbing, or complain about his wounds, and the appellant did not pay much attention to Tomasevic's injuries. (ts 514) A little later, Tomasevic told the appellant he was born in the car, and that the appellant should let him die in the car. (ts 454, 510)

76 The appellant said that as he was leaving the house it was 'dark and black', he could not see anything, he was feeling 'weird and sweaty', he was in a big panic, and there was 'no light'. The appellant also said that, while driving, his hand started cramping up, he felt sick from the blood, everything was dark, he could not see any lights or roads, the road was becoming narrow, and his eyes were teary and watery. (ts 452, 491, 508, 511)

77 The appellant denied that taking amphetamines for a period of time affected his memory. He said that it was more lack of sleep that would affect his memory. Not sleeping for days never made him edgy, bad-tempered, over-confident, fearful, or nervous. He was not sure about the word 'paranoid', but thought of what people might think of him and the way he looked, when he had not slept. The appellant said he was under police surveillance, perhaps even when the stabbing and subsequent events occurred, because of his outstanding drug charges. He said he knew the police were listening to his telephone calls. He denied that he would fantasise about things he thought were happening, but were not really happening. (ts 505 - 506)

78 The next thing the appellant remembered was waking up on the side of the road. He was in the passenger side of the car with the seatbelt on. Tomasevic was no longer in the car. He ate some drugs that were in the car to wake himself. (ts 467) There was shaving cream in the glove box and the appellant used it to clean some of the blood in the car. The appellant did not know where he was. He threw some clothes out of the car onto the side of the road. A woman stopped but she could not help him. Then a man stopped and gave him fuel. The appellant drove for a while, and when he turned into Alexander Drive, he saw a woman in a blue Commodore motor vehicle, who pointed him towards the Gnangara Road turn-off. The appellant said he recognised the car from when he was under police surveillance. The appellant turned towards Lake Gnangara, and when he reached there, a man in a gold Fairlane motor vehicle pointed him in the direction of the lake. He drove the car into the bush and left it there. He put some shirts from the car into a bag, and threw the bag away from the car. He walked around the lake, and went to the toilets. A 'homosexual bloke' started following him around the lake, so he ran and then hid in the bush for about two or three hours. The appellant walked to a house, near the lake, of a Mr Gough, but was scared away by dogs, and spent the night near the toilets at the lake. The appellant stayed at the lake for such a long period because he did not know what to do, or how to get home. He did not try to call anybody from the lake, because he did not have a mobile telephone, there was no telephone booth, and he had no money. He said the events of the night and the blood had triggered war memories for him. The appellant went to some nearby houses to ask to make a telephone call, but nobody was home. He did not ask anyone around the lake for help. The 'homosexual bloke' gave the appellant a lift home. He then had a shower, ate and went to bed. It was afternoon. He did not speak to his family when he got home. He was exhausted and went to sleep. (ts 455 - 459, 514 - 534)

79 The appellant said, for the first time, in cross-examination, that he returned to the car at night-time, as the keys were in the unlocked car, and unsuccessfully attempted to reverse it. He denied going back to the car to try and hide it better. The appellant also said that the car alarm sounded when he opened the car door. After the alarm went off, the appellant shut the car door and ran away. (ts 531)

80 The appellant denied pulling in at a truck stop and dragging Tomasevic's body into the bush. He could not explain why, when Tomasevic's body was found, Tomasevic's underpants were around Tomasevic's thighs, or about a packet of drugs found in Tomasevic's underpants. He denied putting the drugs there, said he did not know where Tomasevic's trousers were, and denied removing Tomasevic's shoes. He denied taking Tomasevic's car keys (for the black car) or his wallet. (ts 511 - 514) He did not know what had happened to the gun that was in the car, or Tomasevic's mobile telephone. (ts 518, 524)

81 The appellant remembered Tomasevic's sister and Pauline Sale coming to his house and speaking to him. He said that he was very tired, and thought Tomasevic was 'alright' because 'something was telling me he was alright. I just thought it wasn't that serious'. He told Tomasevic's sister that Tomasevic was 'alright' and that he did not know where he was. The appellant had a feeling, an 'instinct' that Tomasevic was 'alright'. When he was speaking to Mr Tomasevic and Ms Sale, he did not know the appellant was dead. The appellant denied killing Tomasevic. When he was told that Tomasevic was dead, he was 'ripped apart', he was not himself and was terrified. He said that Tomasevic's father came and picked up Tomasevic's black car at the front of the appellant's house. The appellant did not have the keys to that car and had no idea how it got there. (ts 459 - 462)

82 The appellant said he was not dealing in drugs much at the time of Tomasevic's death because of outstanding drug charges. He still manufactured drugs for sale, but did not want to be seen openly dealing in drugs. From what he and Tomasevic manufactured, about two weeks before the stabbing, which was about 3 or 4 ounces, Tomasevic sold some of it, and Casley used about 1 or 2 grams a day. They supplied Casley with drugs in return for the use of the spare room for production of the drugs. He and Tomasevic were in 'partnership' and sharing the profits. Before he started manufacturing drugs, the appellant was doing some small dealing. The appellant and Tomasevic both used drugs regularly. (ts 462)

83 On 13 September 2004, the appellant said he was on drugs, and had used two lines that day. He could not remember if he had had any drugs the day before, but assumed he had. The appellant would drop in at Casley's house nearly every day to check on the equipment and ingredients. Tomasevic was not there as often. Despite Casley's evidence to the contrary, the appellant said that Tomasevic left the house that night for about 20 minutes to pick up some drugs and came back. The appellant tried a little of it. The appellant said the drugs helped him stay awake, and feel more relaxed and sociable. He did not feel elated or 'hyped up' on amphetamines. He denied the amphetamines made him feel agitated. He did not feel anything out of the ordinary, or any adverse effects, on the night of the stabbing, from the amphetamines he had taken earlier. Tomasevic had also had some drugs that night, and was happy. (ts 466 - 473)

84 On 13 September 2004, the appellant did not remember behaving in a distracted, nervy, hyperactive or agitated way, as other witnesses had said in evidence. He said he would not usually act in that way, and that the others may have perceived his behaviour in that way because they had also used amphetamines. The appellant remembered Hayden as the only person not taking any drugs. (ts 474)

85 The appellant said that Tomasevic was doing the drug deals with Casley and Magee, and that he was not really involved in those particular deals. The appellant said in examination-in-chief that Casley had told him to stand guard outside the kitchen door to prevent Singleton or Hayden from finding anything out, but in cross-examination he said that Casley had not told him that expressly on that night, but had told him numerous times earlier to make sure that Singleton and Hayden did not find anything out about the drugs. (ts 474)

86 The appellant was questioned about the gun in his possession, which he kept under the front seat of the car, but denied not using it on the night in question because he was the one who had stabbed Tomasevic. (ts 437 - 438, 493 - 499) The appellant confirmed that nobody tried to stop the appellant and Tomasevic from leaving the house. (ts 500)

87 Mrs Senada Cecez, the appellant's mother, gave evidence through an interpreter. (ts 626).

88 She said the appellant was born in the former Yugoslavia in 1984. By 1992, the family was in Bosnia-Herzegovina, when the civil war broke out. The appellant was about 7 or 8 years old. One day, the appellant was picking some cherries in a tree, when there was an explosion. There were tree branches and electricity cables falling, buses veering off the road, and people screaming. The appellant came running to Mrs Cecez, covered in blood, because a piece of shrapnel had hit him in the head and he had fallen out of the tree. They rushed to the hospital, which was crowded with people screaming and bleeding. There were many badly wounded people at the hospital. (ts 628 - 629)

89 The family came to Australia in 1998, when the appellant was about 14 years old. Mrs Cecez knew Tomasevic as the appellant's friend, and saw him often. They called each other 'brother'. She remembered the appellant coming home and sleeping on Wednesday, 15 September 2004, the day before he was arrested. Tomasevic's father, sister and a woman called 'Paul' came to see the appellant that day. On the whole, Mrs Cecez was not aware of the appellant's involvement with drugs, and did not know that he had a gun. The appellant would often stay out for a few days, and would say he was with friends or with his girlfriend. Mrs Cecez did not have a specific memory of speaking to the appellant on his mobile telephone in the days leading up to 15 September 2004, but said that if he was away from home, she would usually call his mobile and speak to him, or he would call her back and say he was with friends. Mrs Cecez remembered that the appellant did not have a car in the week that Tomasevic died, and was aware that the appellant was not working at that time. (ts 631 - 640, 643)

90 Mrs Cecez said that the appellant seemed tired and scared or anxious when he came home on 15 September 2004. When Mr Tomasevic came to see the appellant, the appellant said he loved Tomasevic, but did not know where he was. (ts 640 - 641)

91 Dr James Fellows-Smith is a psychiatrist and a physician. He had, relevantly, a particular interest in 'traumatology', being the study of post-traumatic stress syndromes, usually involving work with the military and current and past serving soldiers in war. Dr Fellows-Smith explained post-traumatic stress syndrome as a syndrome that occurs when there has been a severe life threatening trauma and it is included in the anxiety disorders. (ts 539 - 540)

92 Dr Fellows-Smith had examined the appellant in prison on three occasions, for about two hours each time. He assessed the appellant in July 2005 and found that he was not impaired in terms of his fitness to plead and stand trial. Dr Fellows-Smith next saw the appellant in January 2006 and last in July 2006, just before the trial. Dr Fellows-Smith said that a diagnosis of post-traumatic stress disorder required there to have been a sufficiently severe psychosocial stressor that was life threatening. In the appellant's case, while growing up in the former Yugoslavia, the appellant witnessed the death of others and also feared for his life because shrapnel had hit him in the forehead, causing him to fall out of a tree and bleed profusely. Dr Fellows-Smith said the syndrome required that there be an immediate response of intense severe helplessness and horror, which experience can be extremely distressing and lead to the onset of re-experiencing phenomena at a later time when one is exposed to cues that symbolise or resemble aspects of that original trauma. Dr Fellows-Smith also said that the appellant had a phobia for blood products, trauma and needles. (ts 541 - 543)

93 It was Dr Fellows-Smith's opinion that the appellant suffered from some amphetamine induced paranoid psychosis. (ts 547) Dr Fellows-Smith said that the appellant's conduct in fending off and striking Tomasevic with the spirit level when he came out of the kitchen holding the knife, was a phobic reaction to the knife, being a sharp object that could cause a wound. He said the appellant had a panic reaction and possibly experienced a dissociative state, and a change in his awareness of his surroundings, in that he had a breakdown of his usual defences for emotional control and was overwhelmed by intense feelings of horror and anxiety about the consequences of being exposed to a situation which was life-threatening and had symbolic resonance to his earlier traumatisation when he was 7 years old in Bosnia. The symbolic resonance was the sight and smell of blood, the distress of his friend, and the presence of a sharp object. (ts 549 - 550)

94 The appellant gave evidence that everything was 'dark and black' and he was feeling weird, sweaty and panicky after he drove away from Casley's house with Tomasevic bleeding in the car. Dr Fellows-Smith said that the appellant's phobia of needles or sharp instruments triggered an immediate anxiety response. This response had two parts. First, an acceleration of physiological function, experienced as intense fear, and a change in the awareness of his surroundings. The second part, following the arousal state, was the slowing down experience (the vasovagal attack), and the fainting. (ts 553 - 556) Dr Fellows-Smith explained the period of amnesia that the appellant appeared to have between driving with Tomasevic in the car, and waking up in the passenger seat of the car at the side of the road, and his subsequent confusion, as being a characteristic of post-traumatic stress disorder, namely, avoidance and dissociative amnesia. Dr Fellows-Smith further discussed the phenomenon of dissociative amnesia in relation to the appellant's actions. (ts 559 - 563) The appellant's evidence about following the direction of a lady in a blue car to get to the lake, and being followed by a homosexual man at the lake, may have had a connection with the appellant taking amphetamines when he woke up in the car, and being in a dissociative state of mind. (ts 565)

95 In summary, Dr Fellows-Smith said that the appellant had a premorbid specific phobia for blood, needles and injury. Further, the appellant had post-traumatic stress disorder from his experiences in Bosnia, and may have had some paranoid ideation. (ts 566)

96 Dr Fellows-Smith agreed that if someone took amphetamines for a long period and had used amphetamines recently, there may be a tendency toward aggression, and compulsive behaviour. It could also be possibly disinhibiting, cause hallucinations, cause hypersexuality, and may impair judgment. Such traits are more likely to be found in longer term users of the drug. Long-term use could also give rise to paranoid psychoses, and may make a person more volatile in their behaviour. He agreed that in the case of a person with hyperactivity or some such deficit disorder, amphetamines might be used to calm them down. In the case of a person without hyperactivity or some such deficit disorder, the amphetamines may make some, but not all, people hyperactive. (ts 606 - 611)

97 In his diagnosis, Dr Fellows-Smith did not find that the appellant had attention deficit disorder. (ts 611) He agreed that his diagnosis of post traumatic stress syndrome was based on the appellant's subjective history. (ts 614-615)

98 Senior counsel for the appellant contended, relevantly, that the learned trial judge was obliged to warn the jury of the dangers of convicting the appellant on the uncorroborated evidence of Casley and Magee. He submitted that the warning should have drawn attention to matters of significance in the assessment of their credit as witnesses. According to senior counsel, the relevant matters were these:

(a) The evidence of Casley and Magee was inherently unreliable.

(c) Casley admitted he was involved in the manufacture by the appellant and Tomasevic of amphetamines at the Balga house.

(d) Casley also used amphetamines (including on the evening in question) and was a prospective dealer.

(e) Casley's conduct in directing his cousin, Singleton, to clean the crime scene and place the spirit level on top of the linen cupboard, and Casley's action in placing the knife into the engine bay of his car, was incredible, and inconsistent with the behaviour of a person who was merely a witness to the commission of a very serious offence.

(f) Neither the spirit level nor the knife yielded any fingerprints or DNA (in particular, no fingerprints or DNA of the appellant).

(g) It was open to conclude that, during the clean-up, Casley removed drugs from the crime scene, and that Singleton feared him.

(h) Magee admitted using amphetamines on the night in question, and had a significant criminal history including a history of violence and dishonesty.

(i) At the time of the trial, Magee was on remand at Casuarina prison, and was also in custody for breach of an intensive supervision order and was serving a sentence which had previously been suspended.

99 Senior counsel for the appellant complained that the learned trial judge had 'barely mentioned' the matters which I have recounted, and did not provide a warning. It was submitted that, in all the circumstances, notwithstanding s 50 of the Evidence Act 1906 (WA), a warning was necessary. The evidence of Casley and Magee was 'pivotal' in the state's case and, as a matter of law, required careful scrutiny.

100 Section 50 of the Evidence Act provides:

(1) In this section 'corroboration warning' in relation to a trial means a warning to the effect that it is unsafe to convict the person who is being tried on the uncorroborated evidence of one witness.

(2) On the trial of a person on indictment for an offence -

(a) the judge is not required by any rule of law or practice to give a corroboration warning to the jury in relation to any offence of which the person is liable to be convicted on the indictment_;_ and

(b) the judge shall not give a corroboration warning to the jury unless the judge is satisfied that such a warning is justified in the circumstances.

101 In Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79, the accused was convicted in the District Court of Western Australia on two counts of indecent dealing with his step-daughter. The complainant was 6 years of age when the first alleged offence occurred, and 10 years at the time of the second. The complainant's allegations were not corroborated and the trial occurred more than 20 years after the date of the second alleged offence. The accused denied that the incidents occurred. The accused's counsel requested the trial judge to give the jury a warning about acting on the uncorroborated evidence of the complainant. The trial judge declined to give a warning. The accused was convicted. The High Court allowed the accused's appeal, quashed the convictions and ordered a new trial. The Court held that s 36BE(1) of the Evidence Act (which has been superseded by s 50 of the Evidence Act) dispensed with the requirement to warn of the danger of acting on the uncorroborated evidence of alleged victims of sexual offences as a class, but did not affect the requirement to give a warning whenever necessary to avoid a perceptible risk of miscarriage of justice arising from the circumstances of the case. Brennan, Dawson and Toohey JJ said:

[T]here is one factor which may not have been apparent to the jury and which therefore required not merely a comment but a warning be given to them ... That factor was the applicant's loss of those means of testing the complainant's allegations which would have been open to him had there been no delay in prosecution. Had the allegations been made soon after the alleged event, it would have been possible to explore in detail the alleged circumstances attendant upon its occurrence and perhaps to adduce evidence throwing doubt upon the complainant's story or confirming the applicant's denial. After more than twenty years that opportunity was gone and the applicant's [sic] recollection of them could not be adequately tested. The fairness of the trial had necessarily been impaired by the long delay ... and it was imperative that a warning be given to the jury (91).

The jury should have been told that, as the evidence of the complainant could not be adequately tested after the passage of more than twenty years, it would be dangerous to convict on that evidence alone unless the jury, scrutinising the evidence with great care, considering the circumstances relevant to its evaluation and paying heed to the warning, were satisfied of its truth and accuracy (91).

To leave a jury without such a full appreciation of the danger was to risk a miscarriage of justice. The jury were told simply to consider the relative credibility of the complainant and the appellant without either a warning or a mention of the factors relevant to the evaluation of the evidence. That was not sufficient (91).

Deane and McHugh JJ agreed that the appeal should be allowed, but delivered separate reasons.

102 In Crampton v The Queen [2000] HCA 60; (2000) 206 CLR 161, Gaudron, Gummow and Callinan JJ referred to Longman, and said:

There may be some differences, of degree only perhaps, between the joint judgment and those of the other members of the Court: the former would confine the affirmative obligation to give a warning to the matter of delay and the difficulties of testing and disproving allegations by reason of the passage of time, and of the danger of convicting on the complainant's evidence alone. The reasons of Deane and McHugh JJ might perhaps be read as suggesting that the positive obligation to warn that it might be dangerous to convict on a complainant's evidence, may arise in a case in which emotion, prejudice or suggestion may operate to distort recollection, or, in which other circumstances of potential danger in acting upon particular evidence exist. For reasons which will appear, in this case we do not think it necessary to explore the significance (if any) of such differences as there may be between the respective reasons for their Honours' unanimous decision in the result [42].

Also see Doggett v The Queen [2001] HCA 46; (2001) 208 CLR 343 [41] - [55], [115] - [142]; Dyers v The Queen [2002] HCA 45; (2002) 210 CLR 285 [21], [54] - [58], [127] - [131]; Tully v The Queen [2006] HCA 56; (2006) 81 ALJR 391 [131] - [132], [169], [186].

103 Section 36BE(1) of the Evidence Act provided, relevantly, that on the trial of a person for a sexual offence:

(a) the judge is not required by any rule of law or practice to give in relation to any offence of which the person is liable to be convicted on the charge for the offence a warning to the jury to the effect that it is unsafe to convict the person on the uncorroborated evidence of the person upon whom the offence is alleged to have been committed; and

(b) the judge shall not give a warning to the jury of the kind described in paragraph (a) unless satisfied that such a warning is justified in the circumstances.

In Longman, Brennan, Dawson and Toohey JJ said:

If the warning to which par (a) is directed is a warning that it is generally unsafe to convict for any sexual offence on the uncorroborated evidence of the alleged victim (or, to put the warning another way, that it is unsafe to convict on the uncorroborated evidence of the alleged victim of the particular sexual offence charged because evidence of that kind has been shown by experience to be especially liable to fabrication), par (a) does not affect the requirement to warn about other perceptible risks of miscarriage of justice. A warning may be required because of the circumstances of the case other than, albeit in conjunction with, the sexual character of the issues which the alleged victim's evidence is tendered to prove. Paragraph (a) leaves that situation unaffected.

Furthermore, what par (a) abolishes is the requirement to give a warning, not a judge's discretion to comment on the circumstances of the case. No longer may the judge tell the jury that it is dangerous to convict in the circumstances described in par (a) because the experience of the courts has shown it to be so, but the judge may invite the jury in sexual cases (as is done in other criminal cases) to make their own evaluation of the alleged victim's evidence in the light of common human experience. By force of par (a) alleged victims of sexual offences no longer form a class of suspect witnesses, but neither do they form a class of especially trustworthy witnesses. Their evidence is subject to comment on credibility in the same way as the evidence of alleged victims in other criminal cases, but to comment only. Perhaps it should be added that the judge's discretion to comment should not be exercised so as to convey to the jury, whether by phrase, gesture or intonation, a caution about the general reliability of the evidence of alleged victims of sexual offences which is tantamount to the warning the requirement for which par (a) eliminates.

Paragraph (b) is a unique provision. Its first limb is clearly intended to supplement par (a) by prohibiting the giving of a warning which, the legislature obviously feared, judges might have continued to give despite the abolition of the requirement to give it. Its second limb seems to reflect a misconception of the effect of par (a). Once par (a) abolishes the requirement that jurors be warned that the evidence of alleged victims of sexual offences is generally to be treated with suspicion, no particular set of circumstances could justify the judge's directing jurors that all such evidence is treated with suspicion. If par (a) abrogates the rule which reflects curial experience of the need for caution in evaluating the evidence of alleged victims of sexual offences because of the risk of fabrication, then there is no particular set of circumstances which can justify the trial judge in giving the jury a warning based upon general experience. It would make no sense to treat the warning which par (b) permits - a warning based upon particular circumstances - as being restricted to the same kind of warning as that to which par (a) refers - a warning based upon general experience.

That is to say, unlike par (a), par (b) must relate, not so much to a warning of the general unsafety of convicting on the uncorroborated evidence of alleged victims of sexual offences, as to a warning which a trial judge might consider giving on account of the particular circumstances of the case. That is because par (b) directs the judge to find his justification for giving 'such a warning ... in the circumstances'. If the warning which may be given pursuant to par (b) cannot be the warning referred to in par (a), the phrase in par (b) 'a warning ... of the kind described in paragraph (a)' must be taken to mean any warning that it is unsafe in the circumstances of the particular case to convict on the uncorroborated evidence of the particular alleged victim.

Construing par (b) in that way, it prohibits in any case of a sexual offence the giving of any warning that it is unsafe to convict the accused on the uncorroborated evidence of the alleged victim unless the judge is satisfied that the particular warning is justified in the circumstances. The judge cannot be so satisfied if there is nothing in the case to require a warning other than the circumstance that proof of the offence rests on the uncorroborated evidence of the alleged victim. So construed, par (b) first shuts the door on all warnings that it is unsafe to convict an accused on the uncorroborated evidence of an alleged victim, and then reopens it to such warnings where the particular circumstances of the case provide a justification. This construction of the section is somewhat artificial, but it is essential to avoid absurdity. If the words 'of the kind described in paragraph (a)' were to be construed so that the warnings referred to by the respective paragraphs were the same, par (a) would comprehend a warning which might be 'justified in the circumstances'. Such a construction would accord to par (a) a wider operation than is accorded to that provision in other States and destroy the protection afforded in appropriate cases by the requirement to give a warning unrelated to the suspicion attaching to the evidence of alleged victims of sexual offences.

Paragraph (b) thus comprehends more kinds of warnings than the kind of warning to which par (a) refers. Although a warning can be given only if the judge is satisfied that the warning is justified in the circumstances - and therefore must not be given unless, on a view of the facts reasonably open to the jury, there is an occasion for giving a warning - justification may be found in any requirement of a rule of law or practice which might apply in the circumstances other than the requirement to which par (a) refers. If, on a view of the facts reasonably open to the jury, a rule of law or practice requires a warning to be given, not being a warning of the kind to which par (a) refers, the rule must be followed. The rule is itself justification for giving the warning it requires (87 - 89).

104 In Fleming v The Queen [1998] HCA 68; (1998) 197 CLR 250, the appellant was charged with three counts of aggravated indecent assault of a girl aged 15 years, and one charge of sexual intercourse with that girl as a person under his authority. The complainant gave evidence against the appellant and said she was a willing participant. The appellant denied any relationship of a sexual nature. The charges were heard by a judge alone. The trial judge convicted the appellant on all counts. In his reasons, his Honour did not refer to any warning about the reliability of the complainant's evidence. Gleeson CJ, McHugh, Gummow, Kirby and Callinan JJ said:

The appellant's primary ground of appeal is that this was a case of serious crime where a judge would have been required to stress to the jury that, there being only one witness asserting the commission of the offences, the evidence of that witness was to be scrutinised with great care before a conclusion was arrived at and a verdict of guilty brought in (R v Murray (1987) 11 NSWLR 12 at 19). In Longman v The Queen ((1989) [1989] HCA 60; 168 CLR 79 at 107), McHugh J said that if:

'the evidence discloses any circumstance which suggests that the evidence of the complainant may be unreliable, the trial judge has a duty to make the jury aware of the dangers concerning that person's evidence. As in any case where the prosecution depends solely upon the evidence of one witness, the trial judge is entitled to point out that the evidence of the complainant requires careful scrutiny before acting upon it. But cases will frequently arise where the circumstances will require a stronger warning. The terms of that warning will depend upon the particular circumstances of the case: Carr [v The Queen] ((1988) [1988] HCA 47; 165 CLR 314 at 318).'

The submission is that in this case a warning should have been regarded and recorded by the trial judge of the need to assess the reliability of the complainant by reason of her age, emotional instability and infatuation with the appellant. The respondent pointed to a statement in the following form by the trial judge as representing such a sufficient warning and emphasised the use by his Honour of the word 'solely': 'The Crown case relies solely upon the complainant. If I am unable to accept her evidence beyond reasonable doubt, I must acquit the accused.' There may be cases where an examination of the reasons given, although they do not contain express reference to a warning, sufficiently discloses that the judge has had regard to the warning. However, the statement just referred to does not satisfy any such criterion [35] - [36].

Gleeson CJ, McHugh, Gummow, Kirby and Callinan JJ concluded that the failure of the judge to refer to, and take into account, a warning about the reliability of the complainant's evidence was an error of law which constituted a substantial miscarriage of justice. Their Honours evidently accepted that the warning was required on the grounds contended by the appellant, namely, the complainant's age (she was aged 15 at the time of the alleged offences), her emotional instability (apparently arising from an eating disorder and her stressful family situation) and her infatuation with the appellant. A retrial was ordered.

105 I note that, in Fleming, delay was not a relevant consideration. In other words, the necessity for a warning in Fleming did not arise in consequence of delay between the time of the alleged offences and the making of complaint or between the time of the alleged offences and the commencement of the trial. In my opinion, the decision in Fleming involved an application of the general law requirement that a warning be given whenever a warning is necessary to avoid a perceptible risk of miscarriage of justice in relation to the assessment of evidence which arises from the circumstances of the case. Fleming did not enunciate a new or different principle.

106 In Carr v The Queen [1988] HCA 47; (1988) 165 CLR 314, Brennan J made these observations in relation to occasions when a warning is required:

Trial judges give warnings to juries in many situations to guard against perceptible risks of justice miscarrying. The warnings may relate to the jury's contact with the public, the need to disregard information obtained outside the courtroom, the dismissal of prejudice or a variety of other matters occurring in the course of a trial. A warning may be needed to ensure that the jury attributes the appropriate significance and weight to the evidence. That is a central aspect of the jury's function. In the majority of cases the assessment of the evidence can be left to the jury's experience unaided by judicial warnings but there are some occasions when a warning is needed. A warning is needed when there is a factor legitimately capable of affecting the assessment of evidence of which the judge has special knowledge, experience or awareness and there is a perceptible risk that, unless a warning about that factor is given, the jury will attribute to an important piece of evidence a significance or weight which they might not attribute to it if the warning were given. It is not possible to define a priori the circumstances in which a warning is necessary: the circumstances which show whether a perceptible risk of miscarriage of justice exists in relation to the assessment of evidence include the charge, the evidence and the conduct and atmosphere of the trial. Although no rule of law postulates a priori the cases in which a warning is needed, a failure to give a warning when one is needed leaves the proper significance and weight of the evidence in doubt. A guilty verdict founded on that evidence alone may have to be set aside by an appellate court as a miscarriage of justice because the jury, in the absence of a warning, may have reached their verdict by attributing to the evidence an erroneous significance or weight (324 - 325).

107 Similar issues were considered by this court in White v The Queen [2006] WASCA 62, in the context of s 50 of the Evidence Act. I have mentioned that s 36BE(1) of the Evidence Act (the provision considered by the High Court in Longman) has been superseded by s 50. Section 50 was inserted by the Criminal Law Amendment Act 1988 (WA) and amended by the Acts Amendment (Evidence of Children and Others) Act 1992 (WA). The latter Act also introduced s 106D, which provides that in any proceeding on indictment for an offence in which evidence is given by a child, the judge is not to warn the jury, or suggest to the jury in any way, that it is unsafe to convict on the uncorroborated evidence of that child because children are classified by the law as unreliable witnesses. In White, Wheeler JA (with whom McLure and Pullin JJA agreed in relation to the ground of appeal which is relevant for present purposes) said:

[Section 50] is in almost identical terms to the former s 36BE(1), save that it now extends to encompass all of those witnesses in respect of whom there was formerly a rule of law or practice which required the giving of a 'corroboration warning'. In relation to any such witness, the trial judge is now positively forbidden to give to the jury a warning to the effect that it is dangerous to convict on the evidence of a category of witness because the witness falls into some suspect 'category'. The judge may comment upon the evidence of a witness, provided that the judge makes it clear that it is for the jury alone to evaluate the evidence of that witness, in the light of common experience. Where, however, there is a particular danger in acting upon the evidence of a witness which a jury might not otherwise appreciate, a warning should be given. It may be that the need to warn is not confined to 'hidden' dangers, but that is the most usual case in which a need to warn is said to arise: Bromley v The Queen [1986] HCA 49; (1986) 161 CLR 315 at 319, 325 and see R v Johnson [2004] SASC 241 at [44] - [47], where some examples are discussed [70].

Authority in this Court has not been as clear as it might have been in relation to the relevance of s 50 in the past. There has perhaps in some cases been a tendency to analyse a direction to see if it was 'good enough' in traditional terms, with s 50 regarded almost as a provision which excuses a failure to give 'full' direction in traditional terms in some cases. For example, in Lambley v The Queen [[2001] WASCA 38] at [17], the Court appears to have suggested that a warning will be both justified and required whenever the circumstances show some intrinsic lack of reliability in the witness. However, in the particular circumstances of that case, it may well have been common ground that the witness was in a category 'similar to' a prison informer, so that a jury would not, unassisted, appreciate what the dangers of the witness's evidence might be. A case which is often cited in this Court is Foo v The Queen [2001] WASCA 406 at [30] in which Parker J, with whom Steytler J and Olsson AUJ agreed, said:

'Notwithstanding the effect of s 50, however, it will usually be essential in this State, in an appropriate case, that a jury receive a clear and emphatic warning from the trial judge of the potential dangers in acting on the evidence of a witness to convict, which dangers exist because that witness is an accomplice, and which the jury might not appreciate without the warning. That will usually be essential whether or not the evidence of the witness is the sole evidence and whether or not there is corroboration of that evidence. The form of the direction may well be different inter alia by virtue of those matters.' (Emphasis supplied)

I quoted that passage myself in Hoy v The Queen [2002] WASCA 275 at [18], and at [19] expressed the view that such a warning may also be appropriate even where the dangers are apparently obvious. However, having regard to the authority which I have discussed, it now seems to me that only if the words which I have emphasised in Foo, relating to 'hidden' dangers, are given their full effect, should that passage be regarded as accurate. The authorities do leave open the possibility that even where a danger is one which a jury will be able to appreciate unassisted, a warning may nevertheless be required. There may, for example, be cases in which, although the danger is apparent, it is a danger which, because of the attractive features of the particular witness, a jury may too readily overlook. However, as the warning is justified by reason of the 'superior experience' of the Courts in relation to particular types of evidence which are apparently safe to act upon (Chamberlain v The Queen (No 2) [1984] HCA 7; (1984) 153 CLR 521 at 604 per Brennan J), it is likely that it will only be in a very small category of cases that a danger which is apparent to a jury will nevertheless require a warning to be given [77] - [78].

I agree, with respect, with Wheeler JA's observations. Also see Tully [131] - [132], [169], [186].

108 In the present case, senior counsel for the appellant placed particular reliance upon the decision of the Court of Criminal Appeal of Victoria in Director of Public Prosecutions v Faure [1993] VicRp 87; [1993] 2 VR 497. In that case, the applicant was convicted of murder, and appealed on the ground, relevantly, that the trial judge had not adequately directed and warned the jury in relation to the evidence of the applicant's wife. The prosecution alleged that the motive for the killing arose from a dispute between the deceased, on the one hand, and the applicant and his wife, on the other. The applicant's wife was the principal witness for the prosecution, and the case was conducted on the basis that the deceased had been killed by either the applicant or his wife. Hampel J (with whom Smith and J D Phillips JJ agreed) referred to several decisions of the High Court in relation to warnings in criminal trials, including Bromley v The Queen [1986] HCA 49; (1986) 161 CLR 315, Carr and Longman. His Honour held, at 503, that a combination of factors in the particular case, which he enumerated, required the trial judge to give a warning. In my opinion, the decision in Faure provides an example of circumstances in which it was considered necessary for a jury to be given a warning to avoid a perceptible risk of miscarriage of justice in relation to the assessment of evidence. Faure illustrates the application of a general principle to particular circumstances.

109 In my opinion, the High Court authorities which I have reviewed (and the decision of the Court of Criminal Appeal of Victoria in Faure) do not hold that, as a matter of course, a trial judge must instruct or warn the jury as to the need for careful scrutiny of the evidence of a prosecution witness whose evidence is significant (or even critical) to the prosecution case if the witness is of bad character or has his or her own interests to serve. The necessity or desirability for such an instruction or warning will depend, in each case, on the particular circumstances, including whether there is a risk that the jury may be unable to appreciate without assistance, or may overlook, some deficiency or danger associated with the witness or his or her evidence.

110 The learned trial judge did not give the jury an instruction or warning in the terms contended for in ground 1. In my opinion, his Honour was not obliged, in the circumstances, to give such an instruction or warning to avoid a perceptible risk of miscarriage of justice in relation to the assessment of the evidence of Casley and Magee. His Honour's failure to give the instruction or warning contended for was not an error of law and did not cause a miscarriage of justice.

111 In the present case, there is no doubt that the jury would have appreciated from the evidence that:

(a) Casley and Magee used illicit drugs. Casley may have been involved in the sale of drugs, Magee was involved in the sale of drugs, and either or both of them may have been involved in their manufacture.

(b) Casley and Magee were of bad character by reason of previous convictions and other discreditable acts.

(c) The appellant's case was that one or other of Casley or Magee had stabbed Tomasevic.

(d) Casley and Magee were present at the crime scene and might, as potential suspects, have their own interests to serve.

Casley and Magee gave some evidence-in-chief about these matters, and they were cross-examined extensively. Counsel for the appellant at trial attacked their credit.

112 In my opinion, there was no hidden danger in relation to the evidence of Casley or Magee which the jury might have been unable to appreciate without the assistance of an instruction or warning from the learned trial judge. It is not apparent that either Casley or Magee had any attractive features, or that any other circumstances existed, which gave rise to a risk that the jury might overlook their status as persons implicated in drug use and the drug trade, persons generally of bad character or persons who had their own interests to serve.

113 It is apparent, from the jury's verdict of guilty, that the jury was satisfied beyond reasonable doubt that the evidence of Casley and Magee, or either of them, that the appellant had stabbed Tomasevic was truthful and reliable. It is also apparent from the jury's verdict that the jury rejected the appellant's evidence that he did not stab Tomasevic.

114 There was a body of circumstantial evidence which supported the direct evidence of Casley and Magee that the appellant had stabbed Tomasevic. For example:

(a) The evidence of Hayden that the appellant had been in the kitchen.

(b) The evidence of Hayden that the appellant had struck Tomasevic with the spirit level.

(c) The evidence that Hayden had not used drugs on the night in question.

(d) The evidence of the appellant that after Tomasevic was stabbed, he and Tomasevic left the Balga house together in the white hire vehicle.

(f) The appellant abandoned the motor vehicle in question near Lake Gnangara.

(g) The evidence of Mr Gough as to the appellant having told him that he had walked a long way with a friend.

(h) The evidence of Ms Sale, Mr Tomasevic and Ms Tomasevic as to what the appellant told them, and as to the appellant's demeanour, when they enquired about Tomasevic after his death.

(i) The location of Tomasevic's black motor vehicle at the appellant's home after Tomasevic's death.

115 The learned trial judge gave proper instructions to the jury as to the manner in which they should approach the evidence. In particular, his Honour said:

(a) 'What does a dispassionate examination of the evidence tell me? That is particularly important in this case because the accused and just about most of the people I think, except Mr Hayden, were involved in methylamphetamine in some way or another.' (ts 661)

(b) 'Most criminal trials, and this is no exception, depend on your acceptance or otherwise of the testimony of the witnesses, together with what you might draw from the exhibits that you will have. Whether you accept all, or part, or none of a witness' evidence, any witness, is a matter entirely for your judgment. We know of our common sense that sometimes people tell the truth, some people almost always lie, some people tell the truth about some things and not about other things. It's just human nature. Sometimes people may think they're telling you the truth but you prefer other evidence.' (ts 662)

(c) 'Firstly, in relation to the kitchen, Mr Casley - of course he is one of the persons who the accused - or [defence counsel] says "Well, it wasn't the accused but it may have been Mr Casley or Mr Magee who did the stabbing", so you will approach the evidence with that in mind bearing in mind, as I said, it's for the state to prove that it was the accused.' (ts 663)

(d) 'Mr Magee of course was the other person in the kitchen. He'd gone to the house in part because [Tomasevic] was going to give him some drugs to sell.' (ts 664)

(e) 'So obviously you will have to consider all the evidence but Mr Hayden's evidence did seem to be, and this is just a comment, of a person who was pretty well objective and not under the influence of anything and of course his evidence was that [Tomasevic] and [the appellant] went into the kitchen.' (ts 667)

116 Finally, in relation to ground 1, it is relevant to note that counsel for the appellant at trial (who is properly to be described as an experienced counsel in criminal trials) did not submit to the learned trial judge before the summing up that an instruction or warning was required, and he did not seek a redirection. As Wheeler JA noted in White:

[I]t is relevant to note that counsel for the appellant at trial took no issue with it [the direction], and sought no redirection. ... The failure of trial counsel to object to the terms of a direction having this purpose has an important bearing on the question of whether any miscarriage of justice occurred, even if the direction is incomplete or not in conventional terms [54] ...

118 Senior counsel for the appellant contended, relevantly, that even if the appellant's evidence was rejected by the jury, the evidence adduced at trial did not establish beyond reasonable doubt that the appellant was guilty of wilful murder. The basis for this contention was the submission that the evidence of Casley and Magee was inherently unreliable for the reasons which senior counsel advanced in the context of ground 1. According to senior counsel:

These purported eye-witnesses are an insecure basis for a finding beyond reasonable doubt that the Appellant caused the victim's death. This Court should conclude that the evidence lacks credibility for reasons which are not explained by the manner in which it was given and displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court to conclude that even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted. In these circumstances the court is bound to act and to set aside a verdict based on that evidence as a doubt about the guilt must arise.

119 By s 30(3) of the Criminal Appeals Act 2004 (WA), in the case of an appeal against conviction, the Court of Appeal must allow the appeal 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;

(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.

120 In M v The Queen [1994] HCA 63; (1994) 181 CLR 487, Mason CJ, Deane, Dawson and Toohey JJ said, at 492, in relation to s 6(1) of the Criminal Appeal Act 1912 (NSW) (which is in substance identical to s 30(3) of the Western Australian Criminal Appeals Act), that although the phrase 'unsafe and unsatisfactory' does not appear in the statutory provision, it allows a verdict to be set aside when the verdict is unreasonable or not supportable on the evidence. Also see Jones v The Queen (1997) 191 CLR 439, 450.

121 In M, McHugh J said, at 523, that a 'miscarriage of justice' arises whenever the accused has not had a fair trial according to law or whenever the nature of the evidence, the directions to the jury or the procedures that were followed, raise a real doubt as to whether the conviction can be regarded as a safe or just conviction. In Jones, Gaudron, McHugh and Gummow JJ said**,** at 450, that having regard to the statements in M, there can be no doubt that a 'miscarriage of justice' also occurs when the findings or verdicts of the jury raise a real doubt as to whether a conviction is safe or just.

122 In M, Mason CJ, Deane, Dawson and Toohey JJ said that the test for an unsafe or unsatisfactory verdict was whether the court thought that:

upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty (493).

[T]he court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations (493).

Their Honours explained the application of the test:

In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence. In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty (494 - 495).

Also see Jones, 450 - 451. The test formulated by the majority in M is the appropriate test for determining whether a verdict is unsafe or unsatisfactory: Jones, 452; MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606 [25].

123 In Libke v The Queen [2007] HCA 30; (2007) 81 ALJR 1309, Hayne J (with whom Gleeson CJ and Heydon J relevantly agreed) said that where it is alleged that a conviction is unsafe or unsatisfactory, the question for an appellate court is:

[W]hether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant's guilt (M v The Queen [1994] HCA 63; (1994) 181 CLR 487 at 492 - 493[1994] HCA 63; , 69 ALJR 83). It is not sufficient to show that there was material which might have been taken by the jury to be sufficient to preclude satisfaction of guilt to the requisite standard. In the present case, the critical question for the jury was what assessment they made of the whole of the evidence that the complainant and the appellant gave that was relevant to the issue of consent to the digital penetration that had occurred in the park. That evidence did not require the conclusion that the jury should necessarily have entertained a doubt about the appellant's guilt [113]. (emphasis in original)

Also see Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300 [41] (Gleeson CJ, Gummow, Kirby, Hayne, Callinan and Heydon JJ).

124 In my opinion, the appellant's conviction was not unsafe or unsatisfactory, and is capable of being supported, having regard to the evidence.

125 The jury was, no doubt, well aware of the bad character of Casley and Magee, the involvement of those men and others in the manufacture, sale or use of drugs, and the status of Casley and Magee as persons with their own interests to serve. These matters were obvious. The credibility of the prosecution witnesses was a critical issue, and the jury's role was, relevantly, to assess their credit.

126 As I have mentioned, it is apparent, from the jury's verdict, that the jury was satisfied beyond reasonable doubt that the evidence of Casley and Magee, or either of them, that the appellant had stabbed Tomasevic was truthful and reliable, and that the jury must have rejected the appellant's account. Also, as I have mentioned, there was a body of evidence, of a circumstantial nature, which supported the direct evidence of Casley and Magee that the appellant had stabbed Tomasevic. See [114] above. I am not persuaded that the evidence of Casley and Magee was, in any material respect, inherently unreliable.

127 The opinions and evidence of Dr Fellows-Smith did not bear upon who stabbed Tomasevic. Dr Fellows-Smith was able to suggest an explanation for the appellant's professed inability to recall many of the events which occurred after he and Tomasevic left the Balga house. His opinions and evidence were not of any assistance, however, in determining who stabbed Tomasevic. Dr Fellows-Smith did not suggest that the appellant's behaviour after leaving the house would have been different depending on whether it was the appellant who had stabbed Tomasevic or whether it was one or other of Casley or Magee.

128 None of the matters raised on behalf of the appellant precluded a finding by the jury that the appellant was guilty beyond reasonable doubt of wilful murder. I have examined the trial record. My examination does not require the conclusion that the jury must have entertained a doubt about the appellant's guilt. I do not experience such a doubt. The verdict

of the jury was not unreasonable, and it is a verdict which is supported by the evidence.

131 MILLER JA: I have had the opportunity of reading in draft the judgments of Buss JA and Murray AJA. I agree that the appeal should be dismissed, for the reasons given by Buss JA.

132 MURRAY AJA: The appellant was indicted with the wilful murder, or alternatively the murder, of Milan Tomasevic on 13 September 2004 at Balga. He was tried before McKechnie J and a jury on 19 - 21 July 2006 and 24 - 28 July 2006, a weekend intervening. On 28 July 2006, the appellant was convicted of wilful murder and sentenced to a term of life imprisonment with a minimum term of 17 1/2 years, backdated to when the appellant was taken into custody on 16 September 2004.

133 He appeals against his conviction, by leave granted by Roberts-Smith JA on 12 February 2007. The grounds of appeal are:

1. The Learned Trial Judge erred in law by failing to instruct the jury as to the need for careful scrutiny of the sworn evidence given by Kenneth Casley and Brendan Magee, given their status as persons implicated in drug use and sale, persons of generally bad character, and persons who had their own interests to serve, thereby giving rise to a substantial miscarriage of justice.
2. The jury's verdict of guilty is incapable of being supported, having regard to the evidence.

134 To enable each of those grounds to be determined, it will be necessary to review the whole of the evidence. That will be necessary in respect of ground 1 because it is only against the background of the evidence as led at the trial and the issues to which that evidence gave rise that the significance of the evidence of the men Casley and Magee can be understood, and the question whether some warning about the scrutiny required to be given to their evidence by the jury before they might act upon it can be resolved.

135 It is convenient at this point to set out the Criminal Appeals Act 2004 (WA), s 30(3) in full:

The Court of Appeal must allow the appeal 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;

(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.

Ground 1 appears to relate to s 30(3)(b) and (c). Ground 2, on the other hand, relies on s 30(3)(a).

136 There are numerous decisions, particularly of the High Court, which discuss provisions of appellate statutes worded similarly to s 30(3) and operating in the context of a proviso such as that in s 30(4), by which it is provided:

Despite subsection (3), even if a ground of appeal might be decided in favour of the offender, the Court of Appeal may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred.

137 Cases relating to s 30(3)(a) were collected and discussed by Pullin JA in AK v State of Western Australia [2006] WASCA 245 at [36] - [37], and by Buss JA in Riley v State of Western Australia [2007] WASCA 22 at [16] - [24]. The authorities make the following points clear. The question in relation to the application of a provision such as s 30(3)(a) in the context of a proviso such as in s 30(4) as to whether the conviction should be quashed, will be one answered having regard to the wording of the statutory provisions themselves. It is no longer regarded as useful to attempt a judicial gloss upon the statutory provisions, such as by considering whether the conviction is to be regarded as unsafe or unsatisfactory.

138 The question in a particular case may require consideration of an alleged misdirection or failure to direct (as in this case), a complaint about the course of the trial or consideration of the improper reception or rejection of evidence. There may be a need to have regard to misdirections which involve errors of fact, or law, or both, but none of these matters need be involved and there may indeed be no complaint about any such matter.

139 The question raised by a ground of appeal relying on a provision like s 30(3)(a) will require the appellate court to review all the evidence so as to determine whether, in the judgment of the court of appeal, the guilt of the accused has been proved beyond reasonable doubt. If, at the end of its review of the evidence the appellate court does not reach, for itself, the required degree of satisfaction that the accused's guilt has been proved beyond reasonable doubt, then the conviction must be set aside and the proviso cannot be applied because the court may not consider that no substantial miscarriage of justice has occurred.

140 The question for the appellate court therefore is not whether the jury, or trial judge if he or she was the tribunal of fact, were entitled on the evidence to be persuaded of guilt beyond reasonable doubt, but the question imposed by the statute is a question which the appellate court must answer for itself. It must decide whether it affirmatively concludes that the verdict of guilty is unreasonable or cannot be supported having regard to the evidence. But it is clear that that is a positive conclusion required of the appellate court if the conviction is to be disturbed, and it may be that the appellate court will be precluded from reaching that conclusion because of the limitations inherent in its position as a court of appeal.

141 It will not have seen and heard the witnesses. It will not be heir to the natural advantages enjoyed by the jury or other tribunal of fact and the appellate court must not lose sight of the limited position in which it finds itself, particularly in a case such as this where the complaint made concerns the weakness of a case to support conviction, where there is a body of evidence which, if relied upon, was clearly capable of persuading the jury of the guilt of the appellant beyond reasonable doubt.

142 The difficult conceptual task of relating such an inquiry to the potential application of the proviso under a provision such as s 30(4) is touched upon by the High Court in its judgment in Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300, but for the purpose of deciding this appeal it is not necessary to canvass that relationship.

143 I turn then to the evidence. It will be simpler to refer to the various actors by name. Cecez and the deceased, Tomasevic, were good friends. They were both Bosnian. Each had emigrated as children from the former Yugoslavia following the war between the various racial groups who lived in that country. They met here and became friends. They were also associated in the manufacture, sale and use of amphetamines. A place of that manufacture was a house in Balga, rented by the man Casley. He purchased drugs from Cecez and Tomasevic. Another occupant of the house in Balga was Casley's cousin, a man named Singleton.

144 On the evening of 13 September 2004, at about 7 pm, Cecez and Tomasevic arrived together at the Balga address. Casley and Singleton, were there, and at least by the relevant time concerned with the death of Tomasevic, the witness Magee and a man named Matthew Hayden were also there.

145 The events which led to the death of Tomasevic occurred in the kitchen of the house. Four men were said to be there: Cecez, Tomasevic, Casley and Magee. Drugs were being prepared for sale. It appears that when the incident started, Tomasevic was taking drugs from a large bag and putting them into smaller 'deal' bags. There does not appear to have been any argument, conflict or disagreement between Cecez and Tomasevic. Of course, all the men knew each other.

146 Casley's evidence was that, without warning, Cecez, who was behind Tomasevic while he worked with the drugs, turned, looked at him where he stood to the side of Tomasevic, smiled, winked at him, picked up a knife from the bench and stabbed Tomasevic once in the neck with the knife. Casley did not see what then immediately happened to the knife, but he heard screams and Cecez turned and left the kitchen. Tomasevic, obviously gravely wounded, staggered out of the kitchen into the lounge room area, following Cecez.

147 There was a pool table in the living area. There was a spirit level on it, obviously used to get the table properly level. As Tomasevic staggered towards Cecez, holding the knife with which he had been stabbed, Cecez picked up the spirit level and began hitting Tomasevic with it. Cecez said nothing about why he did that. Casley picked up a pool cue and attacked Cecez with it in an endeavour to stop him hitting Tomasevic with the spirit level. That caused Cecez to turn his attention to Casley. Casley said Cecez came towards him and threatened him, saying, 'I'll kill you too.'

148 Casley ran from the house, still carrying the pool cue. He was in such a rush that he slipped and fell, breaking a bone in his wrist. However, he hid in bushes in the garden. Casley remained there until he saw a Hyundai Elantra leave the house. It was a vehicle hired by a woman named Pauline Sale. She had lent it to Tomasevic and he and Cecez were using it that night. Cecez said in evidence that they used the vehicle in their drug business. Casley was not sure who was in the vehicle when it left.

149 However, he later met up with Magee and Hayden and later still drove himself to a hospital to have his wrist attended to. Singleton was with him. But he did not wait at the hospital to get his wrist fully treated. He left and returned to the house. He said he wanted to make it secure. When he arrived, the knife which Cecez used to stab Tomasevic was lying in the driveway. He picked it up and put it in the engine compartment of a wrecked car which was there at the house. He also found the spirit level which he picked up and put on top of a linen cupboard. There was blood in the relevant areas of the house. He and Singleton mopped it up and swept up and threw away the drugs that Tomasevic had been putting into the deal bags, which had dropped onto the floor of the kitchen. As might be imagined, Casley was subjected to considerable questioning about this activity, which he carried out despite his broken wrist, which had at that stage only been bandaged.

150 Casley was cross-examined. The truthfulness of his evidence was challenged. It was put to him that his return to the house and his cleaning was to hide evidence which might implicate him. It was put to him that he hid the knife and the spirit level. At ts 139 Casley was asked whether he killed Tomasevic. He denied doing so. He was asked if Magee killed Tomasevic. He denied that. But that was the extent of the cross-examination which was designed to suggest to Casley that he and/or Magee were the murderers. Nothing more was put, and it is fair to say that so far as Casley was concerned there was no evidence that he was in any way implicated in causing Tomasevic's death.

151 Counsel devoted attention to an attack upon Casley's credibility. He led from him that he was habitually consuming significant amounts of methylamphetamine, 'speed'. Tomasevic, particularly, was his supplier, and he had made the house he occupied available to Tomasevic and Cecez for an attempt to manufacture the drug. There had been, he agreed, discussion that he might be involved in selling the drugs. He had not done so. Casley denied that he and Magee planned to steal the drugs from Tomasevic and Cecez, but the relevance of that suggestion to the proposition that Casley was involved in the killing of Tomasevic was not developed. Finally, Casley admitted that he had previous convictions for fraud and receiving stolen property, but it appeared that the convictions were relatively minor. At ts 196 Casley denied that he and Magee got together and decided to blame Cecez 'for the murder'.

152 When Magee was called, immediately after Casley, the prosecutor, no doubt noting that Casley had been cross-examined on his previous criminal history, and because Magee was brought into court from the cells, immediately led from him that he was a remand prisoner, having been charged with assault occasioning bodily harm, which he said he proposed to defend. He was also in gaol because he had breached an intensive supervision order and to serve a term of imprisonment which had originally been suspended, but which he had, by reason of re-offending, been ordered to serve.

153 Magee said that he knew Casley, but not the others present at the house. He had not seen Casley for about a year and so he was meeting him for 'a couple of drinks'. After Tomasevic arrived, Magee said that it was arranged that Tomasevic would provide him with a quantity of methylamphetamine on credit. Magee would sell the drug on to others, pay Tomasevic and make a profit himself. The quantity of the drug with which he was to be supplied would be valued at about $800. It was speed.

154 Four of them went into the kitchen; Tomasevic, Cecez, Casley and Magee. They were all standing together, or one beside another, and Casley and Magee were drinking. Tomasevic was weighing out the quantity of methylamphetamine, using scales. He had his back to Magee. Tomasevic and Cecez were speaking in a foreign language, but there was no argument, and everything seemed to be comfortable until suddenly, without any warning, Cecez took a knife from a knife block on the counter and stabbed Tomasevic in the neck.

155 Magee said that he regretted that he did nothing to help Tomasevic, but he panicked and rushed from the house. He had an impression of seeing Cecez, obviously in a highly disturbed state, fighting with Casley near the pool table. Magee called the others from the house. He rang 000. Although he knew there might be trouble about the drugs, he felt he had to get help for the wounded man. He saw Cecez drive away in the car which had been used by Tomasevic. He drove Casley to the hospital and left him there. He did not return to the house.

156 When Magee was cross-examined, it was put to him and he agreed that he had actually first seen Cecez and Tomasevic on the previous night, but he denied that he expected to see them at Casley's house on the night of the killing, and he denied that he and Casley had made any arrangements to acquire drugs for resale from Tomasevic. At ts 222 he was asked if he and Casley 'set up' Tomasevic, to steal drugs from him, and he denied any such arrangement. Then Magee was asked whether he would deny it if counsel asked him if he stabbed Tomasevic. He said he would.

157 A little later, he was asked directly if he stabbed Tomasevic in the neck and he said he did not do so. He was asked if Casley stabbed him and he said that he did not do so; the person who stabbed him was Cecez. It was later put to Magee that he and Casley were not content with the amount of the drug with which Tomasevic was to supply Magee, that they wanted all of the drug that Tomasevic had and they 'had an idea to take that speed by force' (ts 230). Magee denied that any such arrangement had been made, and again it is fair to say that there was no evidence that he was implicated in the death of Tomasevic.

158 Finally, he was cross-examined about his previous criminal history and he admitted a number of offences. He was asked questions about an alleged breaking and entering offence committed on the home of his father in High Wycombe, and about threatening behaviour toward another man. In relation to these matters, the trial judge told Magee that he might decline to answer on the ground that his answers might incriminate him. He did so decline and the judge required him to answer. He made some admissions and the judge told him that he would grant him a certificate that would prevent his answers being used in evidence against him other than on a prosecution for perjury, the certificate provided for in the Evidence Act 1906 (WA), s 11(2).

159 When he was re-examined, Magee agreed that at the time of the incidents in question he might have been described as a person with 'violent tendencies', but he implied that that was in the past and he again denied that he and Casley had formulated a plan to rob Tomasevic.

160 In short, it was made abundantly clear that the defence alleged that both Casley and Magee were persons of bad character who knew that Tomasevic would come to the house with drugs, who knew that Magee was to be supplied with a quantity of drugs, and who decided that they would rob Tomasevic of the whole amount of the drugs in his possession. In the course of apparently embarking on that plan, it was put that one or other of them stabbed Tomasevic in the neck, causing his death.

161 It can be seen that the proposition raised by the defence was not that Casley and Magee were unreliable witnesses as such, but that they were lying when they pointed to Cecez as the killer. They were persons of bad character who would be prepared to see an innocent man convicted and punished for the murder of Tomasevic rather than confess that he died in the course of their attempt to rob him of his drugs.

162 Significant evidence was given by the man Hayden. He was a visitor to the house. He knew Casley through his friend Singleton, Casley's cousin, who boarded there. He did not know Magee and had met him that night for the first time. That was the position in respect of Tomasevic. He had met Cecez only once before this particular night, also at Casley's house a few weeks earlier. So his connection was with Singleton. He knew Casley only casually, and the others not at all.

163 He knew that Casley was in some way involved with drugs, but Hayden said he kept clear of such matters, and indeed this was why he stayed in the lounge room using a Playstation when the four men to which I have referred went into the kitchen. By that time he thought that Singleton had retired to his bed. Hayden could not see into the kitchen from where he was. He therefore saw nothing of what occurred there and he heard nothing remarkable until Magee shouted something and ran out of the front door.

164 As Hayden went around the pool table to see what was happening, he encountered Cecez walking backwards out of the kitchen, followed by Tomasevic who was holding his arm behind his neck. Cecez picked up the spirit level from the pool table and started hitting Tomasevic. Nothing was said by either man. Cecez struck a number of blows of some apparent force, and Tomasevic raised his other hand in an attempt to defend himself. Hayden ran outside, following Magee.

165 He met Magee, who appeared very frightened and insisted that Hayden should hide. After a short time, they met up with Casley. Hayden saw the Hyundai Elantra drive away. He could not see inside the vehicle and assumed that Tomasevic and Cecez were the occupants. They were no longer there when he returned to the house. That was clearly significant evidence supporting the evidence of Casley and Magee generally, and the evidence of Magee in particular, in relation to the events in the lounge room and how Magee had been frightened by what he had seen.

166 Singleton was called. He confirmed that he was Casley's second cousin and that he was living in the house. He knew Cecez and Tomasevic slightly because, for a few weeks, they had made occasional visits to the house. Hayden was his friend, and he did not know Magee at all, having met him on the night in question for the first time. He had been with the others when the Playstation was being used in the lounge room, but he went to his room after an argument with Casley about cleaning the house. He then heard a scream, or at least some noise indicative of some violence. When he came out of his room into the lounge room he saw Casley sitting on the floor and Cecez was hitting Tomasevic with the spirit level. From Singleton's description, they were obviously forceful blows. He then saw Casley crouching with the pool cue in his hands.

167 Singleton changed his story at times from his evidence-in-chief to his cross-examination and re-examination. Some of the changes were matters of detail, but a significant change was that in his evidence-in-chief he said that he saw Cecez chase Casley out of the house through the front door. In cross-examination he conceded that he had not actually seen that. He simply assumed that that was what had occurred.

168 In any event, after seeing the fight in the lounge room he went back into his bedroom. After he again emerged into the lounge room there was no-one there. He commenced to use the Playstation until later Casley came in and asked him to clean the blood staining. It was he who put the spirit level on top of the linen cupboard. He did so because Casley told him to do that.

169 The forensic pathologist who conducted the post-mortem examination of the deceased man was Dr Cadden. He identified wounds to the head which he said might have been caused by the spirit level or pool cue. The fatal wound was a stab wound to the neck which had penetrated the carotid artery and led to massive blood loss. Death would have followed, he thought, within a short time. Certainly, he thought, the deceased could not have survived for more than an hour or so. The wound was consistent with having been caused by the knife which was recovered at the scene, as was another knife wound over the right shoulder blade of the deceased. This was not a fatal wound of itself, but it would have caused blood loss and, together with the other wounds, would have contributed to the death.

170 It will have been noticed that Casley and Magee both spoke of seeing one blow to the neck and it was not clear, from the evidence, how the other wound was inflicted, although it does seem clear that Tomasevic had the knife in his hand when he left the kitchen and, indeed, probably until the knife was dropped outside. One might speculate as to how the second knife wound was received, but otherwise Dr Cadden's post-mortem findings bore out the description of events given by the witnesses.

171 There was no issue that Cecez got Tomasevic into the Hyundai Elantra and drove him from the house. He drove to a truck stop just south of Lancelin. It was not known whether Tomasevic was still alive, but in any event Cecez removed him from the car and left the body in scrub where, on 15 September 2004, it was found by a man and his daughter.

172 Cecez drove the vehicle back towards Perth, but it ran out of fuel. Another man helped him by getting fuel from a petrol station for him. This witness, a Mr Paxman, said that Cecez was very agitated and shaking and would not give his real name.

173 The vehicle was abandoned near Lake Gnangara. When it was found, there was heavy bloodstaining inside the car, the blood being consistent with that of Tomasevic. Three packets of methylamphetamine were found. Just near Lake Gnangara, about 24 hours after the events at Casley's house, a Mr Gough spoke to Cecez on his property after he was awakened by his dogs. Again, Cecez was described as being very agitated and nervous.

174 On 15 September, two days after the stabbing, Cecez was visited at his home by Tomasevic's father and his sister. They were concerned that they had not seen Tomasevic, whose car was parked outside Cecez' house. Cecez said that he did not know where Tomasevic was or why his car was there. Both initially and when Mr Tomasevic senior returned to Cecez' house he was told that although Cecez had no idea where Tomasevic was, he was sure he was alive. That evidence was also given by Ms Tomasevic.

175 Both witnesses said that when they spoke to Cecez he would not look them in the eyes. When they telephoned Cecez about a month later, he said that he did not kill Tomasevic. It was put to both witnesses that at that time Cecez added that the two 'Aussie boys' had killed their son and brother. But they denied that this had been said.

176 It will be recalled that the Hyundai had been hired by a Ms Sale, and that she had loaned the vehicle to Cecez and Tomasevic. When it was not returned, she reported to the police that it had been stolen. She admitted this was a false report because she had voluntarily provided the vehicle to Cecez and Tomasevic. Her evidence was that on the afternoon of 15 September 2004 she visited Cecez at his house and asked him when he had last seen Tomasevic. He said 'a couple of days ago', but he did not know where Tomasevic was now. She was actually there when Mr Tomasevic senior visited on the afternoon of that day. Ms Sale denied dealing with Tomasevic to obtain drugs, but she admitted that her partner had done so and that he owed Tomasevic money. She had seen Cecez, Tomasevic, her partner and another man handling firearms.

177 It is convenient at this point to note that in directing the jury, the trial judge, at ts 663, said of Ms Sale that because she admittedly made a false statement to the police, the jury should, 'examine her evidence with special caution before you act on it in any way adversely to the accused, because clearly she is a person who has previously given an untrue account in the past'. His Honour also said of Singleton, who gave various accounts in the witness box of matters which the jury might regard as of critical relevance, that, 'I would suggest it would be very difficult to draw any adverse conclusion against the accused from Mr Singleton's evidence, if that was the only evidence you were relying upon'.

178 There was neither DNA nor fingerprint evidence obtained from the knife and the spirit level, capable of establishing that Cecez had handled either of those objects. Cecez was interviewed by the police on 16 September 2004. The interview was videotaped. The appellant did not admit that he was in any way implicated in the death of Tomasevic.

179 The defence case was based centrally upon the evidence of the appellant, who testified about his early childhood in Serbia and his experiences in the war in the former Yugoslavia. He spoke of the considerable trauma associated with those events. He called his mother, who confirmed that evidence and spoke of his close relationship, developed after they came to WA, with Tomasevic. She also gave evidence that when Cecez returned home after the night in question he was tired, untalkative and appeared frightened and anxious. She had not been aware of his dealings with drugs and did not know anything about his possession of a firearm.

180 The appellant said that after his childhood experiences in the former Yugoslavia, he came to Australia at the age of 14 or 15. He was now 22. He had met Tomasevic after he came to Australia. Although he had no previous convictions, he admitted that he had been using methylamphetamine and had been dealing in the drug. He had had some success with its manufacture, and indeed that was, effectively, his association with Casley, whom he had met some weeks prior to the night when Tomasevic was killed. It had been agreed that he and Tomasevic could use Casley's home in their attempts to manufacture the drug and in return they would supply him with quantities of the drug.

181 On the evening of 13 September he went to the house and he agreed that the other people there were ultimately Casley, Hayden, Singleton, Magee and Tomasevic. He said that he did not go in to the kitchen. Casley, Magee and Tomasevic went there to do a drug deal. He waited outside the kitchen door to make sure that Hayden and Singleton did not come in to the kitchen and find out what was happening. He heard and saw nothing untoward until Tomasevic came out of the kitchen to where he was, holding a knife in his right hand which, Cecez said, was up about level with his head. Tomasevic said to him in Serbian, 'Brother, someone just stabbed me.'

182 He said that he walked quickly backwards and turned slightly, seeing the spirit level on the pool table. As the knife was presented towards him, although he did not think the knife was a threat to him, his split-second reaction was to pick up the spirit level and, by pushing with it and striking blows aimed at Tomasevic's hand, he endeavoured to disarm him. His evidence was that so far as he was aware he had not struck Tomasevic on the head so as to cause the scalp lacerations. He did not, in fact, know what happened to the knife, but Tomasevic ran from the house and he followed. He helped Tomasevic into the car and drove off, intending to take him to a hospital.

183 The effect of the appellant's evidence was that there were gaps in his recollection about what occurred. As they drove, he recalled Tomasevic trying to get a gun which was secreted in the Elantra. He recalled Tomasevic saying that he wanted to go back to the house to 'kill them'. At one time Tomasevic struck him over the head with a bottle. Tomasevic did not in fact say who had stabbed him. Cecez said that while driving, his perception of what was happening was blurred and he commenced to feel ill, no doubt as a result of the blood in the car, coming from Tomasevic's wound.

184 His next recollection was of waking in the vehicle, which was stopped on the side of the road near Lancelin. This was the place where the man, Mr Paxman, helped him by giving him some petrol. Tomasevic was, of course, no longer in the car. Cecez did not know where he was. When he obtained fuel for the vehicle he drove on towards Perth. Near Lake Gnangara he attempted to hide the car because of the blood. He got a lift home. It was about 24 hours after he had been at Casleys' house. When he arrived home he was exhausted and fell asleep.

185 He recalled the later visits of Mr Tomasevic senior and Ms Tomasevic, and also the visit by Ms Sale. He had no idea how Tomasevic's car, which he said had previously been at Tomasevic's house, came to be parked outside his home. His evidence was that he genuinely thought, instinctively, that Tomasevic was all right. He said that was why he did not attempt to contact him on his mobile phone. It was not that he knew he was dead.

186 In the final analysis then, Cecez's evidence was that he did not stab Tomasevic in the neck. He did not strike him on the head with the spirit level so as to cause the lacerations on his scalp. He left the house with Tomasevic in the car for the purpose of taking him to a hospital. He did not know how he got to Lancelin. He did not know how Tomasevic came to get out of the car, but he did not remove him from the car and hide him in the bush. He did not take the keys to Tomasevic's car and he did not know how the car got to his home. He did not know that Tomasevic was dead when he spoke to the people who visited his home.

187 The appellant called a psychiatrist, Dr Fellows-Smith. He thought it likely that, given the wartime experiences suffered by the appellant as a child, and the stressful nature of the events of the night, the appellant was suffering from post-traumatic stress disorder. A feature of that condition was that it might cause a dissociative state which would interfere with Cecez' awareness of events as they occurred. One could add to the factors interfering with Cecez' capacity to recall events, a phobia about blood and needles, and given that Cecez had consumed some speed during the day and that he was an habitual user, there could have been a further interference with his perceptions as a result of amphetamine abuse, although the doctor conceded that the habitual use of amphetamines could cause a tendency to aggression.

188 His opinion was that if the appellant was exposed to the distressing events in the way that he said, that could cause a sympathetic resonance to his early traumatisation as a child in Bosnia. His disorder might then cause a panic reaction and a dissociative state which would interfere with his awareness of what was happening and his surroundings. The evidence of the appellant, Dr Fellows-Smith said, was consistent with a person suffering such a disordered reaction. In other words, this was evidence which might help the jury to the conclusion that the appellant was, or at least might be, giving truthful evidence consistent with his innocence of the homicide.

189 Against the background of that review of the evidence, I turn to ground 2 and ask whether the conviction of wilful murder is unreasonable or may not be supported, having regard to the evidence. In my view, the ground cannot succeed. There were essentially two questions for the jury to decide. The first, of course, was whether the appellant stabbed Tomasevic because, as Dr Cadden's evidence made clear, the death resulted directly from the wound so caused. This was the main issue ventilated in the trial. Effectively, the question was whether the evidence was capable of establishing beyond reasonable doubt that the appellant was the killer, or whether it might have been the case that the killing was carried out by either Casley or Magee, or by the two of them acting in concert, perhaps in the course of a botched attempt to rob Tomasevic of the drug which he had in his possession.

190 It was not possible to find, beyond reasonable doubt, that the appellant was the killer unless his evidence was rejected as being untrue when he positively denied that he had stabbed Tomasevic, and it was necessary to accept as truthful witnesses, Casley and Magee. The evidence of Hayden in particular tended to support Casley's evidence as to the events in the lounge room. Singleton's evidence, changeable though it was, could also be regarded as evidence to that effect. In addition there was the evidence that people ran from the house and hid, in Casley's case in such haste that he fell and broke his wrist.

191 As to the other evidence, it could not be regarded as circumstantial evidence tending to establish that the appellant was the killer, but it was evidence, putting to one side that of Dr Fellows-Smith, which made it difficult to accept the evidence of the appellant as a truthful account. I refer to the evidence of his demeanour displayed to Mr Tomasevic senior, Ms Tomasevic and Ms Sale (if her evidence was accepted). There was the evidence of his state when he was seen by Mr Paxman and Mr Gough, the witness who dealt with the appellant when he turned up at his property near Lake Gnangara. Even the evidence of the appellant's mother contained elements of this character, and these witnesses were describing the state of the appellant in the hours and days immediately after the events surrounding the death of Tomasevic.

192 Of course there was other evidence, perhaps of a peripheral kind, which was consistent with the appellant being implicated in some way in the death. He did not drive Tomasevic to a hospital. He drove north, away from Perth, and when the deceased's body was found it had quite evidently been concealed in the bush near Lancelin. In addition, there was the attempt to hide the vehicle itself near Lake Gnangara, and the fact that Tomasevic's vehicle, which had previously been at his home, was, immediately after the killing of Tomasevic, parked at Cecez' home.

193 I will come shortly to the proposition that the trial judge should have given the jury some warning about the caution with which the evidence of Casley and Magee was to be approached by the jury. But as to the ground presently under discussion, senior counsel for the appellant properly concedes that there is, and can be, no complaint about the manner in which the jury was instructed about their task, the issues in the case, and the need to accept Casley and Magee as truthful and reliable witnesses before it could be found beyond reasonable doubt that the appellant unlawfully killed Tomasevic. Nor is there, or could there be, any complaint about the reception of the evidence of Casley and Magee.

194 It is conceded that the jury had evidence upon which they could be satisfied beyond reasonable doubt that the appellant was the killer, but it is contended that the evidence of Casley and Magee was, in each of their cases, 'inherently unreliable', for the reason that both of them were established by their own admissions to be persons with records of dishonesty, drug users, dealers in illicit drugs and otherwise persons of bad character. The proposition really is that this court should hold that there must be a reasonable doubt that the appellant was the killer because of the impediments in the way of accepting Casley and Magee, or either of them, as witnesses of truth.

195 In my opinion, in a case such as this, where there is nothing inherently improbable in the accounts given by the witnesses and where there is some support outside their evidence that the incident occurred as they said, it would be rare indeed for an appellate court, not having seen or heard the witnesses, to come to such a conclusion and, as I have indicated, in my view there is nothing about this case which could support the conclusion that the whole of the evidence could not establish, beyond reasonable doubt, that the appellant killed Tomasevic.

196 For completeness, I observe that it is no part of the argument in respect of ground 2 that, if the finding that the appellant unlawfully killed Tomasevic was supportable in the manner required by the law, there was anything unreasonable, having regard to the evidence, in the finding, beyond reasonable doubt, that the appellant intended, for whatever motive, to kill Tomasevic so as to require that the verdict the jury returned, that the appellant was guilty of wilful murder, be set aside.

197 It remains to consider ground 1, which starts from the proposition that Casley and Magee were established to be, 'persons implicated in drug use and sale, persons of generally bad character, and persons who had their own interests to serve'. The argument is that in that event and if those matters be accepted, as a matter of law it was necessary to avoid a miscarriage of justice to instruct the jury as to the need for careful scrutiny of the evidence of the two witnesses before it could be relied upon. I found it a little difficult to understand precisely what it is contended the trial judge should have said to the jury in commenting upon the evidence of Casley and Magee, but as I understood counsel, the proposition was that it was necessary to specifically remind the jury of the matters to which the ground refers and to tell them that these were matters which might affect the truth and reliability of the evidence of both witnesses so that the jury should take great care not to rely upon the evidence of either witness unless, despite having regard to the matters adverse to their credibility, they were satisfied that it was safe to do so.

198 The trial judge did not specifically instruct the jury in those terms, but his Honour did tell them how to approach the evidence and their fact finding task. In doing so, at ts 661, his Honour said that it was important to make a dispassionate analysis of the evidence, because the accused and almost all of those involved were concerned with methylamphetamine, either as users, or makers and sellers. That would not be condoned, his Honour supposed, and it was part of the background of the case, but it should not be used to the prejudice of the accused. His Honour told the jury that it was for them to decide whether to accept all, or part, or none of the evidence of any particular witness. His Honour said that we all know that some people tell the truth, some people almost always lie, and some tell the truth about some things and not about other things. It was for the jury to make their assessment of the witnesses.

199 His Honour reminded the jury that they could look at what witnesses had said on other occasions, and they might be concerned to see that a witness had changed their story, referring particularly to Singleton and Ms Sale (ts 663).

200 His Honour went on to review the evidence of each witness in summary form. He commenced with Casley, describing him and Magee as people who defence counsel said might have been, one or other or both of them, the people who killed Tomasevic. When the trial judge first mentioned Magee, at ts 664, he said that he had gone to the house in part because Tomasevic was going to give him some drugs to sell. On the other hand, the trial judge spoke of Hayden as a person who was accepted to be, 'pretty well objective and not under the influence of anything'.

201 It is clear that the trial judge proceeded upon the basis that no particular warning was required in relation to Casley or Magee, but the jury could be left to perform their task of evaluating that evidence and determining if they were prepared to rely upon it, without special instruction. In the context of the trial as it was conducted, it would seem that his Honour proceeded upon the basis that the jury would appreciate that, given that the fatal stabbing occurred in the kitchen at a time when, on any version of the evidence, Casley and Magee were present, there would be a need to scrutinise their evidence closely before relying upon it to establish beyond reasonable doubt that it was the appellant who fatally wounded Tomasevic. They must have appreciated that in those circumstances Casley and Magee had interests of their own to serve and that neither was a person of unblemished character. Both were involved in the manufacture, use and sale of illicit drugs in one way or another, and both had previous convictions for offences of dishonesty.

General principles governing judicial instruction on evidence

202 The question raised by ground 1 is whether the trial judge was required, if a perceptible risk of a miscarriage of justice was to be avoided, to specifically warn the jury that in those circumstances they should scrutinise the evidence of those witnesses with great care before relying upon it as a truthful and accurate account of what occurred.

203 For the respondent it was argued that such a warning was not required by reason of the provisions of the Evidence Act 1906 (WA), s 50, which is in the following terms:

(1) In this section 'corroboration warning' in relation to a trial means a warning to the effect that it is unsafe to convict the person who is being tried on the uncorroborated evidence of one witness.

(2) On the trial of a person on indictment for an offence -

(a) the judge is not required by any rule of law or practice to give a corroboration warning to the jury in relation to any offence of which the person is liable to be convicted on the indictment_;_ and

(b) the judge shall not give a corroboration warning to the jury unless the judge is satisfied that such a warning is justified in the circumstances.

For my part, I think this matter is not governed by s 50. What is sought is not a corroboration warning within the meaning of s 50(1).

204 In the course of argument we were referred, for the respondent, to the decision of this Court in White v The Queen [2006] WASCA 62. That was a case which raised the question of a corroboration warning and the application of s 50 of the Evidence Act in circumstances quite different from this case, which need not be discussed here. In discussing grounds concerned with a particular witness, a tainted witness who may have been an accomplice, and the need for a corroboration warning, Wheeler JA, with whom McLure and Pullin JJA agreed on this point, said, at [66]:

A Judge may comment upon the evidence of such a witness, but comment only; the Judge should not go further than inviting the jury to evaluate the evidence of the witness in the light of the various considerations which may affect its probative value. Any requirement to do more - that is, to warn, rather than to comment - arises not by reason of the category into which the witness falls, but by reason of the particular circumstances of the case. A particular circumstance which may (and perhaps will) require such a warning may be a 'hidden danger' which the jury would not appreciate without being assisted by a warning.

205 In my respectful opinion, the approach taken by her Honour in respect of the circumstances which may require the jury to be given a particular warning in relation to some piece of evidence has general application. In Carr v The Queen [1988] HCA 47; (1988) 165 CLR 314 similar observations were made by the High Court when considering whether a special warning was required and if so what warning, in relation to the danger of acting upon an uncorroborated oral confession. At 324 - 325 Brennan J said:

A warning may be needed to ensure that the jury attributes the appropriate significance and weight to the evidence. That is a central aspect of the jury's function. In the majority of cases the assessment of the evidence can be left to the jury's experience unaided by judicial warnings but there are some occasions when a warning is needed. A warning is needed when there is a factor legitimately capable of affecting the assessment of evidence of which the judge has special knowledge, experience or awareness and there is a perceptible risk that, unless a warning about that factor is given, the jury will attribute to an important piece of evidence a significance or weight which they might not attribute to it if the warning were given. It is not possible to define a priori the circumstances in which a warning is necessary: the circumstances which show whether a perceptible risk of miscarriage of justice exists in relation to the assessment of evidence include the charge, the evidence and the conduct and atmosphere of the trial.

206 For my part, I will draw no distinction between a comment on the evidence and a warning. The Criminal Procedure Act 2004 (WA), s 112, provides:

After addresses have been made in accordance with section 145 and before the jury retires to consider its verdict, the judge must instruct the jury on the law applicable to the case and may make any observations about the evidence that the judge thinks necessary in the interests of justice.

In substance, the former provision, s 638 of the Criminal Code (WA), was in precisely those terms.

207 That the trial judge's observations about the evidence must include such comments, directions or warnings as the special experience of the courts teaches the judge are required, if the jury are, in relation to any matter of evidence, to be alerted to a danger or special consideration necessary for the proper evaluation of the evidence which they may not appreciate for themselves, absent the direction of the trial judge, is certainly the basis upon which the courts invariably require proper directions about the dangers of identification evidence.

208 In Domican v The Queen [1992] HCA 13; (1992) 173 CLR 555, at 560 - 561, the High Court said:

In a criminal trial, the distinction between directions on matters of law and directions on matters of fact or argument is fundamental. A trial judge is bound to direct the jury as to any principle of law or rule of practice applicable to the case, and a misdirection or non-direction on such a matter will usually mean that the trial has miscarried. But matters of fact and the arguments in relation to them are in a different category. A trial judge is not bound to discuss all the evidence or to analyze all the conflicts in the evidence, and, by itself, the failure of a trial judge to do so does not mean that there has been any miscarriage of justice. ...

Whether the trial judge is bound to refer to an evidentiary matter or argument ultimately depends upon whether a reference to that matter or argument is necessary to ensure that the jurors have sufficient knowledge and understanding of the evidence to discharge their duty to determine the case according to the evidence. Consequently, the conduct of the case necessarily bears on the extent to which the judge is bound to comment on or discuss the evidence. Discussion or comment which is justified or required in one case may be neither required nor justified when a similar case is conducted in a different way.

The foregoing statements are applicable to all criminal cases including those where the prosecution relies on identification evidence as the whole or part of the proof of guilt of an offence. Nevertheless, the seductive effect of identification evidence has so frequently led to proven miscarriages of justice that courts of criminal appeal and ultimate appellate courts have felt obliged to lay down special rules in relation to the directions which judges must give in criminal trials where identification is a significant issue.

209 That was recognised by Anderson J in Roser v The Queen (2001) 24 WAR 254 in his Honour's discussion of the directions required in respect of photo identification at 271 [65] and following. Malcolm CJ expressly associated himself with those remarks and, at 265 [39], I said:

In a case which depends on evidence of identification, it is trite to say that in commenting upon that evidence the trial Judge is commenting upon matters of fact and performing the duty imposed upon a trial Judge in every case to ensure that the jury is brought to a proper awareness of what may be the strengths and weaknesses of the evidence upon which a capacity to be persuaded of guilt beyond reasonable doubt depends. In this as in any other such area the comments of the trial Judge and the warnings given are not required to be couched in any particular language but must be such as will make clear to the jury what the dangers inherent in acting upon the evidence may be in circumstances where it is thought that, without such guidance, the jury may not appreciate the difficulties which long experience has impressed upon trial Judges. Where, without such assistance, the jury may be expected to understand the strengths and weaknesses of the evidence and make a proper evaluation of it, no such warning need be given.

210 In Bromley v The Queen [1986] HCA 49; (1986) 161 CLR 315 the question before the court was when and in what terms the jury needed to be warned about the reliability of evidence given by a witness who had a mental disability. At 319, Gibbs CJ, with whom Mason, Wilson and Dawson JJ agreed, said:

If it appears that a witness whose evidence is important has some mental disability which may affect his or her capacity to give reliable evidence, common sense clearly dictates that the jury should be given a warning, appropriate to the circumstances of the case, of the possible danger of basing a conviction on the testimony of that witness unless it is confirmed by other evidence. The warning should be clear and, in a case in which a lay juror might not understand why the evidence of the witness was potentially unreliable, it should be explained to the jury why that is so. There is no particular formula that must be used; the words used must depend on the circumstances of the case.

211 In separate reasons, Brennan J, at 325, summed up his view by saying:

Perhaps no more can be said than this: when the danger in acting upon the evidence is real and substantial and when the conduct of the trial and evidence as to the witness's mental disorder are such that the jury may not have fully perceived, or the jury's attention may have been diverted from, the danger, a warning should be given.

212 The criminal law has long since moved on, often with the assistance of statutory provisions, from taking the position in respect of the credibility and the evaluation by the jury of the reliability of the testimony of particular witnesses that there are some categories of witnesses in respect of whom the trial judge should give directions to the jury, formulated upon the footing that the evidence of the witness cannot be relied upon without corroboration or support of that kind elsewhere in the evidence. The law no longer takes that position with respect to the evidence of accomplices, informers, children, persons suffering from mental disability, women and complainants in sexual cases. Section 50 of the Evidence Act is an example of a statutory provision effecting changes of this type.

213 But that is not to say that directions need not be given in particular cases, couched in terms appropriate to the evidence in the case and the way in which the case was fought on either side. The purpose of the trial judge in commenting upon such evidence and in giving directions or warnings about the manner in which the evaluation of the evidence should be approached by the jury, will be to ensure that the jury is equipped with an understanding of any particular difficulties attendant upon the evaluation of the evidence, of which all or some of them may be unaware.

214 I have mentioned that this appears to be the principle at work behind the directions in relation to issues of identification, and one sees it at work in other areas where directions are required, not to elucidate matters of law, but to guide the jury in relation to their approach to particular types of evidence. I have in mind such matters as the corroboration type warning when there has been delay in bringing a matter to trial, which is often referred to as the Longman warning, after the case which was its genesis: Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79. This Court's judgments in relation to that area, in my opinion, proceed upon the basis that the warning reflects the application of the principle to which I have referred, eg, Christophers v The Queen [2000] WASCA 308; (2000) 23 WAR 106 and Crisafio v The Queen [2003] WASCA 104; (2003) 27 WAR 169.

215 A related area is the matter of delay in complaining about a sexual assault, the subject of s 36BD of the Evidence Act and discussion by the High Court in Crofts v The Queen [1996] HCA 22; (1996) 186 CLR 427, as applied by the Court of Criminal Appeal in Kailis v The Queen [1999] WASCA 29; (1999) 21 WAR 100, particularly by Malcolm CJ at 135.

216 The directions about uncharged acts and the warning against propensity reasoning is another example of the perceived need to give the jury instruction and guidance in relation to the use to which a body of evidence may properly be put and to warn them against what is regarded as an impermissible use of such evidence to aid a conclusion about the guilt of the accused of the particular offence or offences charged. Other examples may be provided, but it is unnecessary to do so for present purposes.

217 A case concerned with evidence of uncharged acts and, relevantly for present purposes, the question whether a Longman warning was required, is Tully v The Queen [2006] HCA 56; (2006) 81 ALJR 391. In that context, the statement of the general principle as to when a warning or instruction to the jury would be required and as to what should be the content of that warning is, in my opinion, consistent with what I have written above: see Kirby J at 401 - 402 [44] - [49]; Hayne J at 406 [73] - [79] and 408 - 409 [89] - [92]; and Crennan J, with whom Heydon J agreed, at 425 [178] - [180]. At 426 [186] Crennan J summed up her Honour's view as to whether in that case a Longman warning was required of the trial judge, by saying:

There was no forensic disadvantage to the appellant, arising out of the explained delay, which would have been palpable or obvious to the trial judge, but would not have been apparent to the jury. The concatenation of circumstances, being the age of the complainant at the time of the offences and at trial, the sexual nature of the offences, the explained delay between the offences and report, and trial, and inconsistencies in the complainant's evidence, could all be evaluated by the jury in the light of their own experiences. Therefore it was not necessary for the trial judge to give a warning to avoid a miscarriage of justice.

218 A useful summation of the duty in this regard imposed on a trial judge is to be found in the judgment of Gaudron ACJ, Gummow, Kirby and Hayne JJ in RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620 at 637 [41]. The case was concerned with the comment which might be made by a trial judge when an accused declined to give evidence.

219 In relation to the instruction in the form of directions, warnings or comments which a trial Judge should give in relation to the jury's resolution of questions of fact and their evaluation of the evidence, the law is, in my respectful opinion, well summed up by observations made by Hayne J in Melbourne v The Queen [1999] HCA 32; (1999) 198 CLR 1 at 53 [144]. The case concerned what, if any, direction should be given by the trial judge when there was evidence of good character. His Honour said:

It is trite to observe that the jury, not the judge, are the sole judges of questions of fact. But that does not mean that a trial judge can leave all questions of fact to the jury without giving them any directions. The trial judge in a criminal trial must instruct the jury about some matters that affect how they set about finding the facts. Thus in some cases the judge must warn the jury of dangers of which they must beware when they are considering the facts. Directions about the dangers of identification evidence or about accepting uncorroborated evidence in some circumstances provide ready examples. But it is always necessary to bear steadily in mind that it is the jury that decide the facts - not the trial judge. Especially is this necessary when the question is (as it is in this appeal) whether a trial judge is bound to direct a jury on some matter that touches how the jury finds the facts in the case. The warnings about factual issues that I have mentioned are given to the jury not just because they relate to one or more of the issues in the case but because, if they are not given, the jury may omit consideration of important matters (of which they may be unaware) and wrongly conclude that guilt has been demonstrated beyond reasonable doubt.

220 It amounts to this, I think. As part of the trial judge's function to direct the jury as to the law and make such observations about the facts as are required to secure a fair trial, in accordance with the general statement of the duty by the High Court in Alford v Magee [1952] HCA 3; (1952) 85 CLR 437 at 466, when the real issues in the case are identified, the trial judge will be obliged to consider, in relation to matters of fact and evidence, whether any, and if so what, instruction should be given to the jury if a perceptible risk of a miscarriage of justice is to be avoided. The instruction to be given should be one related specifically to the issue identified and the circumstances of the case. It should be an instruction designed to assist the jury to understand how to approach a particular body of evidence, any limitations there may be as to how it may be used and as to how they may reason, having regard to the evidence, upon the issue of the guilt of the accused.

221 An instruction or warning will be required where the experience of trial judges reveals a danger to the process of achieving a fair trial which the jury may not appreciate. If that is not the case, no special instruction or warning is required to avoid a miscarriage of justice and the trial judge will not err if no special instruction is given, but the jury is left to their fact-finding task guided by their own wisdom and experience. In my view, it may be added that unless the circumstances positively call for a special instruction or a warning, the judge should do no more than remind the jury of the issues truly raised by the case which will require their decision.

Was a special instruction required in this case?

222 So far as this case is concerned, as I have said, the jury could not convict the appellant of an unlawful homicide unless they firstly rejected the appellant as a witness of truth, as they evidently did, and unless they were prepared to accept as a truthful and reliable witness at least one of Casley and Magee. Satisfaction about their credibility was therefore central to the jury's capacity to return a verdict of guilty. Considerable attention was devoted to exploring this issue at trial. The jury knew what their character was, of their records of offences of dishonesty and violence, and of their implication in the sale and use of illicit drugs. They knew, in other words, that these were people who were not of good character.

223 And the jury knew that because, if Tomasevic was not killed by the appellant he must have been killed by one or other or both of Casley and Magee, they had a very powerful motivation to divert attention from themselves by accusing the appellant of the killing. The impact of these matters potentially upon the capacity to accept Casley and Magee as truthful witnesses must have been very evident to the jury without the need for any special instruction from the trial judge about the careful scrutiny which should be given to them as witnesses before the jury was prepared to rely upon their evidence.

224 For the appellant reliance was placed upon Director of Public Prosecutions v Faure [1993] VicRp 87; [1993] 2 VR 497, a decision of the Vic Court of Appeal which set aside a conviction of murder which depended substantially upon the evidence of the appellant's wife, the trial being conducted upon the basis that it was either the appellant or his wife who was the killer. It can be seen that she had a very immediate interest of her own to serve in giving evidence against her husband.

225 The jury were given special instruction about relying upon her evidence, but it was done by the trial judge referring to the arguments of counsel and there was no warning about the need for caution given by the trial judge as such. The court held that the case was one which, having regard to the particular factual circumstances, required a warning to be given by the judge, employing the authority of his office, and the conviction was quashed. So the case was not one in which nothing was said, but it was concerned with the adequacy of what was done, upon the basis that a warning about the special position in which the appellant's wife was placed was required. To my mind the case provides no authority for the proposition that in every such case such a warning must be given and it does not, in my opinion, assist the appellant to establish that a warning was required in this case. In my view, ground 1 has not been made out and I would dismiss the appeal.