Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Criminal law - Appeal against conviction - Appellant convicted after trial of 'felony murder' - Victim unknowingly suffered from atherosclerotic cardiovascular disease - Victim died of a cardiac arrest in the course of the appellant unlawfully detaining and 'terrorising' him - Accident - Whether the precise mechanism or means of the victim's death as a possible outcome of the appellant's actions must have been intended or foreseen or reasonably foreseeable or whether it was sufficient if the State proved that the victim's death by some mechanism or means of the nature or kind in fact suffered by the victim as a possible outcome of the appellant's actions was intended or foreseen or reasonably foreseeable - Whether the trial judge's failure to leave accident to the jury occasioned a miscarriage of justice

Criminal law - Appeal against conviction - Whether the setting aside of the appellant's conviction on the count of 'felony murder' required that his conviction on other counts also be set aside

Criminal law - Appeal against sentence - Appellant convicted after trial on two counts of detaining a person with intent to gain a benefit, pecuniary or otherwise, for the appellant by a threat or a demand - Manifest excess - Totality

Criminal Appeals Act 2004 (WA), s 30(4)

Appellant's application filed 4 June 2015 for leave to adduce additional evidence dismissed

Appellant's application for leave to rely on Ms Muhling's affidavit sworn 1 September 2015 and the written submissions filed 1 September 2015 dismissed

Judgment of conviction entered on count 2 set aside

Judgments of conviction entered on counts 1 and 3 not disturbed

Appellant resentenced in relation to counts 1 and 3

Ahmad v The Queen [2003] WASCA 234

Baiada Poultry Pty Ltd v The Queen [2012] HCA 14; (2012) 246 CLR 92

Boughey v The Queen [1986] HCA 29; (1986) 161 CLR 10

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

Director of Public Prosecutions (Nauru) v Fowler [1984] HCA 48; (1984) 154 CLR 627

Eriha v The State of Western Australia [2011] WASCA 167

Filippou v The Queen [2015] HCA 29; (2015) 89 ALJR 776

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

Giglia v The State of Western Australia [2010] WASCA 9

Hooper v The Queen [2000] WASCA 394; (2000) 116 A Crim R 510

Hunter v The State of Western Australia [2014] WASCA 184; (2014) 245 A Crim R 191

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

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

Macartney v The Queen [2006] WASCA 29; (2006) 31 WAR 416

Osborne v The State of Western Australia [2013] WASCA 106

Parker v The Queen (Unreported, WASCA, Library No 950259, 26 May 1995)

Payne v The Queen [2002] WASCA 186; (2002) 131 A Crim R 432

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

Peters v The Queen [2000] WASCA 28

Petersen v The State of Western Australia [2016] WASCA 66; (2016) 75 MVR 234

R v Condon [2010] QCA 117

R v Coomer [2010] QCA 6

R v Dykstra [2011] QCA 175

R v Gould & Barnes [1960] Qd R 283

R v Peachey [2006] QCA 162

R v Stuart [2005] QCA 138

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

R v Wardle [2011] QCA 339

Reeves v The Queen [2013] HCA 57; (2013) 88 ALJR 215

Roffey v The State of Western Australia [2007] WASCA 246

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

Starr v The State of Western Australia [2011] WASCA 170

Stuart v The Queen [1974] HCA 54; (1974) 134 CLR 426

Tubb v The State of Western Australia [2007] WASCA 106

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

Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300

Wheeler v The State of Western Australia [2008] WASCA 111

Wilde v The Queen [1988] HCA 6; (1988) 164 CLR 365

Worthington v The State of Western Australia [2005] WASCA 72; (2005) 152 A Crim R 585

1 BUSS JA: The appellant appeals against conviction and sentence.

2 On 28 January 2015, he was convicted, after a trial in the Supreme Court before EM Heenan J and a jury, of three counts in an indictment.

3 Count 1 alleged that on 24 April 2013, at Mandurah, the appellant detained Lindsay Terrance Ferguson with intent to gain a benefit, pecuniary or otherwise, for the appellant by a threat or a demand, contrary to s 332(2)(a) of the Criminal Code (WA) (the Code).

4 Count 2 alleged that also on 24 April 2013, at Mandurah, the appellant murdered Mr Ferguson, contrary to s 279 of the Code.

5 Count 3 alleged that also on 24 April 2013, at Mandurah, the appellant detained Debra Lee Tippett with intent to gain a benefit, pecuniary or otherwise, for the appellant by a threat or a demand, contrary to s 332(2)(a) of the Code.

6 On count 1, the trial judge imposed a sentence of 8 years' imprisonment with eligibility for parole. On count 2, his Honour imposed a sentence of life imprisonment with a minimum non-parole period of 17 years. On count 3, his Honour imposed a sentence of 8 years' imprisonment with eligibility for parole.

7 His Honour ordered that the sentence for count 1 be served concurrently with the sentence for count 2. His Honour ordered that the sentence for count 3 commence after the appellant had served 4 years of the individual sentence for count 1. The total effective sentence for counts 1 and 3 was therefore 12 years' imprisonment.

8 The trial judge ordered that the sentences for counts 1 and 2 be backdated to 24 April 2013, when the appellant was taken into custody for the offences.

9 The appellant has appealed against his conviction on count 2, but not his convictions on counts 1 and 3. However, in his orders wanted, the appellant asserts that if his appeal against conviction on count 2 is allowed, all of his convictions should be set aside and a new trial should be ordered on all of the counts. Counsel for the appellant based this assertion on what he referred to as the 'wash over' effect (appeal ts 2 - 4).

10 The appellant has also appealed against sentence. He challenges the minimum non-parole period of 17 years' imprisonment for count 2, the individual sentences of 8 years' imprisonment imposed on each of counts 1 and 3 and the total effective sentence of 12 years' imprisonment for counts 1 and 3.

(a) allow the appeal against conviction on count 2 (that is, the murder count), set aside the judgment of conviction and order a new trial on that count;

(b) refuse to set aside the judgments of conviction on counts 1 and 3;

(c) dismiss the appeal against sentence in respect of count 2, in view of my opinion that the appeal against conviction on that count should be allowed and a new trial ordered, without considering the merits of the appeal against the minimum non-parole period;

(d) dismiss the appeal against sentence in respect of the individual sentences of 8 years' imprisonment for each of counts 1 and 3; and

(e) allow the appeal against sentence in respect of the total effective sentence of 12 years' imprisonment for counts 1 and 3.

Overview of the facts and circumstances of the alleged offending

13 An overview of the facts and circumstances of the alleged offending is as follows.

14 On the morning of 24 April 2013, the appellant and a number of his associates went to the Mandurah Shopping Centre.

15 The appellant behaved oddly. He swore at people, spoke inappropriately to a woman and shouted at motor vehicles.

16 The appellant entered a bank to withdraw some money from his account. He behaved aggressively. Eventually, his request to withdraw money was processed and he joined his companions outside. The group walked to a taxi rank and waited for a taxi. Eventually, a taxi driven by Mr Ferguson arrived. The appellant got into the front seat, beside Mr Ferguson, and three of his companions sat in the rear compartment area. The taxi had several rows of seats.

17 The appellant's group asked Mr Ferguson to take them to a nearby Caltex service station. Mr Ferguson drove to the service station. He stopped while one of the group went into the service station to purchase food and other items. The appellant behaved oddly again. He made a crude remark to a woman who was filling her vehicle with petrol. After the food and other items were purchased, the appellant's group asked Mr Ferguson to drive them to an address in Meadow Springs Road to the north of Mandurah. During this journey the appellant's erratic behaviour became more obvious.

18 As Mr Ferguson was driving to the address in Meadow Springs Road, the appellant produced a knife. He stabbed the front passenger seat, the dashboard, the gearstick cover and the centre console. The appellant brandished the knife and waved it in close proximity to Mr Ferguson. He shouted, swore and kicked the interior of the taxi. The appellant smashed either the satellite navigation system or the music radio with the knife. He ripped the handset from the two-way radio and he ripped a cup holder from the interior of the taxi and threw it out the window. The appellant spat more than once at the windscreen. His companions endeavoured, with little success, to calm him.

19 At Meadow Springs Road, Mr Ferguson stopped the taxi. A young man emerged from bush in the vicinity. The appellant's group purchased methylamphetamine from the young man. The appellant then insisted on one of his companions injecting him with some of the drug.

20 At some stage, either shortly before or shortly after those events, Mr Ferguson attempted to use his radio to call for assistance.

21 After the drug transaction was completed, Mr Ferguson turned the taxi around and drove towards Mandurah. However, soon afterwards he stopped again. There was an altercation within the appellant's group. All of the passengers, except the appellant, left the taxi. Mr Ferguson unbuckled his seatbelt and attempted to escape, but the appellant physically prevented him from leaving the taxi and dragged him back inside.

22 The appellant demanded that Mr Ferguson drive him to Mandurah. At some stage, the appellant snatched Mr Ferguson's microphone or radio headset and threw it into the back of the taxi. The appellant continued to stab various parts of the taxi with his knife, including the console around the gearstick in the area adjacent to Mr Ferguson's left hand.

23 Mr Ferguson drove south, along Mandurah Road, towards Mandurah. As the taxi approached Rouse Road, Mr Ferguson suddenly collapsed and became unconscious. The taxi was out of control. It veered towards the side of the road. The appellant grabbed the steering wheel. He spun the taxi into a left hand turn. It collided with a truck, and then skidded and stopped in Rouse Road outside factory or commercial premises.

24 A number of people went to the assistance of the occupants of the taxi. They found Mr Ferguson slumped and unconscious in the front seat. When asked what had happened, the appellant made disparaging remarks about, and swore at, Mr Ferguson. He also spat at one of the people who had come to assist and swore at others. The appellant left the scene. Eventually, an ambulance was called and police arrived, but Mr Ferguson was already dead.

25 The appellant walked along Rouse Road. He obstructed traffic and attempted to enter a vehicle that had stopped at an intersection. The appellant then continued on foot along Mandurah Road and turned into Rafferty Road. He entered the office in the business premises of Richards Mining Services. Two employees, namely Ms Tippett and her assistant, were present.

26 The appellant demanded that someone call him a taxi. He added, 'if not, somebody is going to die'. He was placated, to some extent, by Ms Tippett. She then retreated to the service area behind the office. The appellant followed Ms Tippett. He drew a knife from a drawer and threatened her. There was a struggle. Ms Tippett managed to wrench the knife from the appellant's grasp. It fell to the floor. Ms Tippett returned to the office. She was followed by the appellant who seized a pen and, later, a motorcycle helmet with which he threatened her. The police were called. They arrived and arrested the appellant.

27 After initial processing by the police, the appellant was taken to the Rockingham Health Campus for psychiatric and other assessment. A medical report prepared after he had been admitted for two days concluded that the appellant was not suffering from an acute psychiatric condition or displaying any acute psychiatric symptoms.

28 The appellant was then charged with the offences in question.

Overview of the medical evidence in relation to Mr Ferguson's death

29 An overview of the medical evidence in relation to Mr Ferguson's death is as follows.

30 Dr Judith McCreath, a forensic pathologist, carried out a post-mortem on Mr Ferguson. This revealed that Mr Ferguson suffered from atherosclerotic cardiovascular disease. Dr McCreath's examination did not identify any injury or trauma that could account for his death.

31 Two of Mr Ferguson's three descending coronary arteries had been almost completely occluded by his pre-existing disease. The third descending coronary artery had been significantly occluded. However, Mr Ferguson had been without symptoms and he was not aware that he was suffering from a significant heart disease.

32 Dr McCreath's ultimate conclusion, after conducting the post-mortem, was that Mr Ferguson's cause of death was consistent with atherosclerotic cardiovascular disease.

33 At trial, Dr Geoffrey Mews, an interventional cardiologist, was called as a witness by the State. He gave evidence about the circumstances which may occasion heart failure.

34 Dr Mews said that pressure, tension and threats can cause a person to have disturbed electrical responses in his or her heart. This, in turn, creates fibrillation which has the effect of preventing the heart pumping blood and supplying the brain with oxygen. If this is not alleviated then, after the brain has been deprived of oxygen for about 10 seconds, there will be a loss of consciousness and, within three minutes, death will occur.

35 In Dr Mews' opinion, that process was very likely the mechanism which resulted in Mr Ferguson suffering heart failure. The process could be contrasted with deaths arising from other species of heart attacks commonly encountered because, in Mr Ferguson's case, no thrombus or tearing of the heart muscle was noticed at the post-mortem.

36 Dr Mews reviewed Mr Ferguson's medical records, Dr McCreath's findings, and information he was given as to the circumstances surrounding Mr Ferguson's death. In his opinion, there was little, if any, doubt that the highly stressful events experienced by Mr Ferguson in his interaction with the appellant caused Mr Ferguson's sudden death.

Overview of the State's case at trial: count 2

37 An overview of the State's case at trial on count 2 (that is, the murder count) is as follows.

38 The State's case was presented on the basis of the 'felony murder' rule.

39 Section 279(1)(c) of the Code provides, relevantly, that if a person unlawfully kills another person and the death is caused by means of an act done in the prosecution of an unlawful purpose, which act is of such a nature as to be likely to endanger human life, the person is guilty of murder.

40 By s 279(3), for the purposes of s 279(1)(c), it is immaterial that the person did not intend to hurt any person.

41 According to the State, the appellant caused Mr Ferguson's death by means of an act that was done in the prosecution of an unlawful purpose, the act being of such a nature as to be likely to endanger human life.

42 In other words, the Stage alleged, first, that the appellant did an act which caused Mr Ferguson's death; secondly, that the act was done in the prosecution of an unlawful purpose; and, thirdly, that the act was of such a nature as to be likely to endanger human life.

43 The act relied on by the State was 'the [appellant's] act of terrorising Mr Ferguson' (ts 63). The State's case in relation to the content of that act, as explained by the prosecutor in her opening address, included:

[T]he brandishing of the knife; the use of the knife to stab the dashboard, the gearstick cover, the front passenger seat and the centre console; the waving at least of the knife in close proximity to Mr Ferguson; the swearing, spitting, yelling and throwing of things; the injecting of drugs; the kicking of the dashboard repeatedly, the damaging of the two-way radio and ... physically preventing Mr Ferguson from leaving that taxi (ts 63).

44 The State alleged that the appellant's act, on which it relied, caused Mr Ferguson's death because the act made a substantial or significant contribution to his death.

45 According to the State, the appellant's act of 'terrorising' Mr Ferguson was an act of such a nature as to be likely to endanger human life.

46 The prosecutor told the jury, towards the end of her opening address, that if the jury was 'satisfied at the end of the trial that [the appellant] did an act that caused the death of Mr Ferguson, and that the act was of such a nature as to be likely to endanger life, and that he did that act when carrying out an unlawful purpose, then you will find him guilty of murder' (ts 64 - 65).

Appeal against conviction: count 2: grounds of appeal

47 Initially, the appellant relied on three grounds in his appeal against his conviction on count 2 (that is, the murder count).

48 However, at the hearing of the appeal, counsel for the appellant abandoned ground 1 (appeal ts 22).

49 Further, at the hearing, counsel for the appellant sought leave to reformulate ground 2. Counsel for the State did not object to the reformulation. The court granted the appellant leave to amend and ordered the parties to file and serve written submissions in relation to the reformulated ground.

50 Ground 2, as amended, alleges that there was a miscarriage of justice at trial when, in relation to count 2, the trial judge misdirected the jury. There are two particulars of ground 2 as amended.

51 Particular 2.1 asserts that his Honour misdirected the jury as to how the jury must evaluate whether the relevant act (namely, the appellant's alleged terrorising of Mr Ferguson in the taxi) was 'of such a nature as to be likely to endanger human life', within s 279(1)(c).

52 Particular 2.2 asserts that his Honour misdirected the jury as to how the relevant act, of its nature, was on the State's case likely to endanger human life.

53 Ground 3 alleges that there was a miscarriage of justice at trial when, in relation to count 2, his Honour 'failed to direct the jury as to the defence of accident pursuant to [s 23B(2)] of the [Code] and how it arose in relation to "felony murder"'.

54 On 6 June 2015, Mazza JA granted leave to appeal on ground 3 and referred the application for leave to appeal on ground 2 to the hearing of the appeal.

Appeal against conviction: count 2: appellant's application for leave to adduce additional evidence

55 By an application in the appeal filed 4 June 2015, the appellant applied in effect for leave to rely on a report dated 14 January 2014 of Dr Mews. The report, which was part of the prosecution brief for the trial but was not tendered in evidence at trial, is annexed to an affidavit sworn 4 June 2015 by the appellant's counsel, Mr Watters. In his affidavit, Mr Watters asserts that the report is relevant to ground 1 of the appeal against conviction (which has been abandoned) and also to ground 3 of the appeal against conviction.

56 On 6 June 2015, Mazza JA referred the application to the hearing of the appeal.

57 In his report, Dr Mews said the evidence that Mr Ferguson became unconscious and then had a motor vehicle accident would indicate that 'most likely he had a malignant cardiac arrhythmia causing loss of consciousness resulting in the motor vehicle accident'. After reviewing a number of mechanisms of sudden cardiac arrest and sudden cardiac death, Dr Mews concluded:

I have no doubt that the stressful situation that Mr Ferguson was in was the trigger that caused his sudden cardiac death. Given the fact that he had severe unknown coronary artery disease he would be especially vulnerable to any sort of acute stress.

Appeal against conviction: count 2: the appellant's application for leave to rely on the affidavit of Helen Kathryn Muhling sworn 1 September 2015 and the written submissions filed 1 September 2015

58 By an application in the appeal filed 1 September 2015, the appellant applied for leave to rely on an affidavit sworn 1 September 2015 by his solicitor, Ms Muhling, and written submissions filed 1 September 2015. The affidavit and the submissions concern, relevantly, the appellant's orders wanted; in particular, the order that, if the appeal against conviction in relation to count 2 is allowed, this court should order a new trial on all of the counts in the indictment.

59 On 23 September 2015, Mazza JA ordered that the application be referred to the hearing of the appeal.

60 In her affidavit, Ms Muhling merely asserts, relevantly, that the appellant seeks to amend his orders wanted so that if his conviction on count 2 is set aside then his convictions on counts 1 and 3 should also be set aside.

Appeal against conviction: count 2: the relevant provisions of the Code

61 Section 270 of the Code provides that any person who causes the death of another, directly or indirectly, by any means whatever, is deemed to have killed that other person.

62 By s 273, a person who does any act or makes any omission which hastens the death of another person who, when the act is done or the omission is made, is labouring under some disorder or disease arising from another cause, is deemed to have killed that other person.

63 Section 268 provides that it is unlawful to kill any person unless such killing is authorised or justified or excused by law.

64 By s 23B(2), a person is not criminally responsible for an event which occurs by accident. The effect of s 23B(2) is, relevantly, that if a person kills another person, within s 268, and the death was an event which occurred by accident, within s 23B(2), then the person who killed the other person will not be criminally responsible for the death, as stated in s 23B(2), and the killing will be excused by law, within s 268, and therefore not unlawful.

65 Section 277 provides that any person who unlawfully kills another is guilty of a crime which, according to the circumstances of the case, may be murder or manslaughter.

If a person unlawfully kills another person and -

(a) ...

(b) ...

(c) the death is caused by means of an act done in the prosecution of an unlawful purpose, which act is of such a nature as to be likely to endanger human life,

the person is guilty of murder.

Alternative offence: s. 280, 281, 283, 284, 290 or 291 or Road Traffic Act 1974 s. 59.

67 It is immaterial, for the purposes of s 279(1)(c), that the person did not intend to hurt any person: s 279(3).

68 Section 280(1) provides that if a person unlawfully kills another person under such circumstances as not to constitute murder, the person is guilty of manslaughter.

69 Section 281(1) provides that if a person unlawfully assaults another who dies as a direct or indirect result of the assault, the person is guilty of a crime. By s 281(2), a person is criminally responsible under s 281(1) even if the person does not intend or foresee the death of the other person and even if the death was not reasonably foreseeable.

Appeal against conviction: count 2: what the State was required to prove

70 The State's case that the appellant was guilty of murder, contrary to s 279(1)(c) of the Code, required the State to prove beyond reasonable doubt that:

(a) the appellant did an act which caused Mr Ferguson's death;

(b) the act was done in the prosecution of an unlawful purpose;

(c) the act was of such a nature as to be likely to endanger human life; and

Appeal against conviction: count 2: the appellant's submissions on ground 2 as amended

71 As to particular 2.1, counsel for the appellant submitted that the trial judge failed to direct the jury as to how the relevant act (namely, the appellant's alleged terrorising of Mr Ferguson in the taxi) was of such a nature as to be likely to endanger Mr Ferguson's life by causing him to suffer a cardiac arrest.

72 As to particular 2.2, it was submitted that his Honour's summing up did not refer to whether the relevant act was of such a nature as to be likely to endanger human life in the manner alleged by the State; namely, a risk to Mr Ferguson's life by the appellant's alleged conduct with the knife in close proximity to Mr Ferguson; alternatively, a risk to Mr Ferguson or people in the vicinity of the taxi if the relevant act should result in Mr Ferguson losing control of the taxi.

Appeal against conviction: count 2: the merits of ground 2 as amended

73 The test for determining whether an act is of such a nature as to be likely to endanger human life is objective. That is, the act must in fact have been of such a nature as to be likely to endanger human life. See R v Gould & Barnes [1960] Qd R 283, 298 (Townley J, Mansfield CJ agreeing). It is enough that the act which caused the death was in fact likely to endanger human life, whether or not the accused knew that it was dangerous and whether or not he or she intended to endanger human life. See Stuart v The Queen [1974] HCA 54; (1974) 134 CLR 426, 438 (Gibbs J, Mason J agreeing).

74 The act must be of such a nature as to give rise to a substantial, real and not remote chance that human life would be endangered. See Macartney v The Queen [2006] WASCA 29; (2006) 31 WAR 416 [139] (Wheeler JA). However, that outcome need not be more likely or probable than not. See Boughey v The Queen [1986] HCA 29; (1986) 161 CLR 10, 14 - 15 (Gibbs CJ), 18 - 22 (Mason, Wilson & Deane JJ).

75 As to particular 2.1, the appellant merely asserts, without elaboration, that the trial judge 'failed to direct the jury as to how the relevant act was of such a nature as to be likely to endanger Mr Ferguson's life by causing him to suffer a cardiac arrest'.

76 The trial judge, in dealing with that element in his summing up, said:

Well, what are acts or actions of such a nature as to be likely to endanger human life? Well, driving violently and recklessly, being careless in the use of a weapon, a variety of other matters obviously, but in this case whether this period of menace and threats to Mr Ferguson were acts of such a nature as to be likely to endanger human life brings us back, somewhat unexpectedly, to the question of causation.

Because whether an act is of such a nature as to be likely to endanger human life, that is, whether it is likely to imperil human life, has a lot to do with whether or not there is a risk that it might cause death, so you are really in this case addressing the question of whether this conduct was of a kind which might be likely to endanger human life or cause death. That is why we go back to the questions of causation which I said were so important (ts 620).

77 His Honour reminded the jury of the evidence of Dr McCreath and Dr Mews concerning Mr Ferguson's cause of death (ts 621 - 623). In particular, his Honour said:

[Dr Mews'] explanation of what occurred goes this way, and it is that if a person has cardiosclerotic disease, that is the narrowing of cardiac arteries it means that if the heart has to pump a larger volume of blood for any reason, maybe because of strenuous activity of the person or because of emotional conditions which create the fight or flight response, the arteries cannot accommodate this extra blood flow.

They are unable to dilate sufficiently to take the volume, and the faster beating of the heart results in the cells within the heart having disturbed electrical responses and, instead of operating in unison, create a quivering effect or fibrillation which has the effect of preventing the heart from pumping blood, and the prevention of the pumping of the blood means that freshly oxygenated blood is not delivered to the brain or other essential organs, and that the deprivation of oxygenated blood to the brain can lead to a loss of consciousness after about 10 seconds which, if not relieved, can lead to death in about three minutes. And it may reach the stage where even attempts at resuscitation by cardiac stimulus or electrical impulse fail to revive the heart.

And it is Dr Mews' opinion that this particular cardiac episode occurred in this way ...

So the postulation of Dr Mews, it being a matter of opinion, was that the cardiac crisis began as Mr Ferguson was driving along and led to the loss of consciousness which preceded the accident, and that's his opinion as to how the death was caused in this case (ts 621 - 623). (emphasis added)

78 The trial judge told the jury that if it accepted the evidence of Dr McCreath and Dr Mews that '[took the jury] back to the question of whether, in these circumstances, the actions or the series of actions by [the appellant] in the [taxi] during the period in which he was pursuing his unlawful purpose were actions of such a nature as to be likely to endanger human life' (ts 623). His Honour then elaborated:

And Dr Mews again has said that with a person with cardiac arterial occlusion of this nature that could occur, because the arteries cannot dilate, and that in some respects the emotional effects of constant threats and menacing are more menacing than prolonged physical activity, because their effects could continue and would not cease on the cessation of the activity (ts 623). (emphasis added)

79 I am satisfied that the extracts I have reproduced from his Honour's summing up, in the context of the summing up as a whole, adequately directed the jury as to how the relevant act (namely, the appellant's alleged terrorising of Mr Ferguson in the taxi) was of such a nature as to be likely to endanger Mr Ferguson's life by causing him to suffer a cardiac arrest.

80 The jury could have been in no doubt that, on the State's case, the relevant act was of such a nature as to be likely to endanger Mr Ferguson's life, by creating in Mr Ferguson an emotional response to the appellant:

(b) using the knife to stab the front passenger seat, the dashboard, the gearstick cover and the centre console;

(c) waving the knife in close proximity to Mr Ferguson;

(d) swearing, spitting, yelling and throwing things;

(h) physically preventing Mr Ferguson from leaving the taxi and dragging him back inside,

and by that emotional response in turn narrowing Mr Ferguson's cardiac arteries, and thereby resulting in Mr Ferguson likely suffering a cardiac arrest, a loss of consciousness and, ultimately, death.

81 As to particular 2.2, the appellant complains that the trial judge did not direct the jury as to whether the relevant act was of such a nature as to be likely to endanger human life in the manner alleged by the State; namely, a risk to Mr Ferguson's life by the appellant's alleged conduct with the knife in close proximity to Mr Ferguson; alternatively, a risk to Mr Ferguson or people in the vicinity of the taxi if the relevant act should result in Mr Ferguson losing control of the taxi.

82 The prosecutor particularised, in her opening address, the act which the State alleged was likely to endanger human life:

So what's the act that the State relies on in this case? Well, the State says that the act you will need to consider is the accused's act of terrorising Mr Ferguson.

And that act of terrorising Mr Ferguson includes, the State says, the following conduct: the brandishing of the knife; the use of the knife to stab the dashboard, the gearstick cover, the front passenger seat and the centre console; the waving at least of the knife in close proximity to Mr Ferguson; the swearing, spitting, yelling and throwing of things; the injecting of drugs; the kicking of the dashboard repeatedly, the damaging of the two-way radio and the physically preventing Mr Ferguson from leaving that taxi.

So that's the act, the act of terrorising Mr Ferguson (ts 63).

83 A little later in her opening address, the prosecutor said:

[T]he State says ... the act was done ... whilst the people were in a moving vehicle. It was done close to the person who was driving the vehicle, it wasn't done by a backseat passenger or anything like that, it was the front seat passenger, that the act encompasses the brandishing of the knife, the stabbing of the gearshift. And we all know where the gearshift is vis-a-vis the person in control of the moving vehicle, that the taxi was travelling in a built-up area at around 10 o'clock in the morning and that there were, in fact, other people who were in the taxi at the time (ts 64).

84 In her closing address, the prosecutor identified the manner in which the relevant act was likely to endanger human life:

So the final issue when it comes to the felony murder that you would need to consider is whether the act of terrorising Lindsay Ferguson was an act of such a nature as to be likely to endanger human life. Now, when it comes to considering that, it's important, I'd suggest, ladies and gentlemen, that you bear in mind Lindsay Ferguson was driving. He was in charge of a dangerous thing. A car can be a dangerous thing. We all know, I'd suggest, that you should never interfere with or distract the driver because ... there is a risk, a real risk, that there may be a collision and that collisions do and can and are of such a nature as to endanger human life. Just how real was that risk in this case is clearly demonstrated, I'd suggest, by the objective evidence of how close that knife must have come to Lindsay Ferguson. And one of the best examples of that is that gearstick cover. This was a manual vehicle. Lindsay Ferguson is driving in a built-up area. You need to change gears; needed to be close to that. Yet you have a look at those photographs of the damage to that. We've already talked about the two-way radio and how close that was and the damage to that, and perhaps even the circumstances that it was damaged in. Depending on the view you take about the small incised injury to his head, you've got the evidence from [a passenger in the back seat of the taxi, Fred Ugle] about how close he thought the knife was getting to him and what he did as a consequence and his assessment that it was ... pretty close to the driver as well. There are, I'd suggest, ladies and gentlemen, any number of aspects of the acts that the accused was doing on that day that was part of this terrorising of Lindsay Ferguson which could have led to loss of control of that vehicle. And that is absolutely, I'd suggest, ladies and gentlemen, something that would endanger human life. So the act of the accused, I'd suggest to you, you'd have no difficulty in coming to that conclusion, particularly when you think about - this conduct wasn't happening for just this period of time and then nothing. The accused admits it was happening over the duration. This is an extended period of time. And we've heard the unpredictability of the accused's conduct (ts 564 - 565).

85 The trial judge focused, in his summing up, on the question of whether the State had proved that the life of Mr Ferguson (only) had been endangered by the relevant act of the appellant, in the context of the medical evidence from Dr McCreath and Dr Mews as to the manner and cause of Mr Ferguson's death (ts 620 - 623).

86 When the jury initially retired to consider its verdicts, the prosecutor raised with his Honour, in the absence of the jury, her concern about the scope of his Honour's direction on that point. The prosecutor asserted that the relevant act endangering human life:

[M]ay arise in distracting the driver, may cause a collision, which in and of itself is an endangerment to life. There's also the endangerment because of the brandishing of the knife in the confined space. And the fact that those acts are taking place in a confined place both endanger the life of the driver directly but endanger life generally in their capacity to distract the driver or to interfere with the driver's control of the vehicle so as to cause a collision (ts 635).

87 The trial judge refused to redirect the jury as sought by the prosecutor. His Honour maintained, in debate with the prosecutor, that 'there really wasn't any evidence of conduct which ... might have caused [Mr Ferguson] to be distracted' (ts 636). It was unknown 'what happened in the [taxi] after it left Meadow Springs [Road], except one could infer that the knife was being waved about and there was more yelling and screaming and spitting' (ts 636). His Honour gave these reasons for his refusal to redirect:

I think I should cut this short. I'm not really persuaded that there is a sufficient evidential basis in this case to identify the likelihood of risk to human life from the acts or actions relied upon by the prosecution as to extend to some risk other than the risk which materialised. I acknowledge that in certain instances the section may have that reach, but I do not think that in the present case it warrants the jury being told more about this threat than they already have been told (ts 641).

88 So, his Honour left the case to the jury on the basis that the only manner in which the relevant act of the appellant was alleged to be likely to endanger Mr Ferguson's life was by causing him to suffer a cardiac arrest.

89 In my opinion, the basis on which his Honour left the case to the jury excluded from the jury's consideration the other ways in which the prosecutor had argued that the relevant act of the appellant was of such a nature as to be likely to endanger human life. His Honour's directions focused the jury's attention solely on the specific way in which Mr Ferguson actually died. In these circumstances, no miscarriage of justice, as alleged by counsel for the appellant, could have arisen.

Appeal against conviction: count 2: the appellant's submissions on ground 3

91 Counsel for the appellant submitted that there was an evidentiary foundation at trial for the operation of s 23B(2) of the Code and the trial judge was bound to direct the jury on the defence of accident, notwithstanding that defence counsel did not ask his Honour to give the direction.

92 In particular, counsel submitted that there was an evidentiary foundation for the propositions that:

(a) the possibility of Mr Ferguson's death was not intended or foreseen by the appellant; and

(b) the possibility of Mr Ferguson's death could not reasonably have been foreseen by an ordinary person, in the appellant's position,

(a) The evidence of the overall circumstances in which the offence was allegedly committed, including the fact that, apart from the evidence that he physically prevented Mr Ferguson from leaving the taxi and dragged him back inside, the appellant did not have any direct physical contact with Mr Ferguson.

(b) The fact that Mr Ferguson did not know that he suffered from atherosclerotic cardiovascular disease.

(c) The fact that the appellant remained in the taxi while it was being driven by Mr Ferguson at least arguably undermined the proposition that the appellant foresaw that Mr Ferguson might die as a result of his actions.

(d) The appellant's video record of interview with police, which was tendered by the prosecutor, was at least arguably inconsistent with the appellant having foreseen the possibility of Mr Ferguson's death; for example, the appellant's assertion in the interview that Mr Ferguson fell asleep while he was driving and, consequently, the appellant 'grabbed the handle [and] put it back on the road' (VROI 33).

94 Counsel for the appellant argued that the subjective test of accident under s 23B(2) will not be satisfied if death by some general means was foreseen by the accused as a possible outcome, but there is a disconnect between the actual means of death and the general means that was foreseen. According to counsel, the actual means of death must be foreseen as a possible outcome.

95 Similarly, counsel argued that the objective test of accident under s 23B(2) will not be satisfied if death by some general means is reasonably foreseeable by an ordinary person, in the accused's position, as a possible outcome, but there is a disconnect between the actual means of death and the general means that was reasonably foreseeable. According to counsel, the actual means of death must be reasonably foreseeable as a possible outcome.

96 It was asserted that, in the present case, the relevant 'event' within s 23B(2) was Mr Ferguson's death. The actual means of Mr Ferguson's death was death from atherosclerotic cardiovascular disease or by a cardiac arrest.

97 Counsel submitted that, on the evidence at trial, the appellant did not intend that his 'act' should cause Mr Ferguson's death from atherosclerotic cardiovascular disease or by a cardiac arrest and, also, the appellant did not subjectively foresee that Mr Ferguson's death by that actual means was a possible outcome of his 'act'. Further, Mr Ferguson's death by that actual means was not objectively foreseeable as a possible outcome of his 'act'.

Appeal against conviction: count 2: the State's concession on ground 3

98 Counsel for the State conceded that there was an evidentiary foundation at trial for the propositions that:

(a) the possibility of Mr Ferguson's death was not intended or foreseen by the appellant; and

(b) the possibility of Mr Ferguson's death could not reasonably have been foreseen by an ordinary person, in the appellant's position,

99 According to counsel, it followed that the trial judge was required to direct the jury on the defence of accident, notwithstanding that defence counsel did not ask his Honour to give the direction.

100 Counsel for the State submitted that it will not be enough that death by some other means is objectively reasonably foreseeable when the actual means of death is not. The 'event', within s 23B(2) of the Code, refers to the consequences of the identified act as it actually occurred. Accordingly, unless the accused intended to cause the death of the victim or some other person, accident will only be negated if the death of the victim in the way he or she actually died was subjectively foreseen by the accused or was objectively reasonably foreseeable.

101 It was submitted that there may be 'room for some flexibility of approach in assessing how precisely the event consequential upon the act of the accused must be [subjectively] foreseen or [reasonably] foreseeable, based on the circumstances of a given case', but in the present case it was unnecessary to determine 'the degree of specificity required'.

102 Counsel did not concede that Mr Ferguson's death, in the manner in which it actually occurred, was not objectively reasonably foreseeable.

103 Counsel for the State accepted that a miscarriage of justice was occasioned because of the absence of a direction from the trial judge on the defence of accident.

Appeal against conviction: count 2: the merits of ground 3

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

105 A trial judge must leave the defence of accident to the jury if, at the close of the evidence, there is evidence which, taken at its highest in favour of the accused, could lead a reasonable jury, properly instructed, to have a reasonable doubt as to whether the State had negatived accident, even if the accused's counsel has not put that defence. See Pemble v The Queen [1971] HCA 20; (1971) 124 CLR 107, 117 - 118 (Barwick CJ), 132 - 133 (Menzies J); Van Den Hoek v The Queen [1986] HCA 76; (1986) 161 CLR 158, 161 - 162 (Gibbs CJ, Wilson, Brennan & Deane JJ); Fingleton v The Queen [2005] HCA 34; (2005) 227 CLR 166 [83] (McHugh J); Braysich [32].

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

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

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

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

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

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

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

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

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

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

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

(3) If death or grievous bodily harm -

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

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

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

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

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

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

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

113 The explanatory memorandum to the bill which, upon enactment, became the Criminal Law Amendment (Homicide) Act made these comments about the proposed s 23B(3) and s 23B(4):

Proposed section 23B(3) provides that the egg-shell skull rule is an exception to the general test for accident. This section prevents an accused who has deliberately applied force to another person from relying on the defence of accident even where the death or grievous bodily harm of the other person would not have occurred but for the presence of a defect, weakness or abnormality in the victim. It is irrelevant whether or not death or grievous bodily harm was intended or foreseen by the person or reasonably foreseeable by a reasonable person (2).

114 At all material times prior to 4 April 2011 (when the Criminal Code and Other Legislation Amendment Act 2011 (Qld) came into operation), the provisions of s 23(1) of the Criminal Code (Qld) (the Queensland Code) with respect to accident were relevantly identical to the provisions of the second part of the first paragraph of s 23 of the Code and the current s 23B(1) and s 23B(2) of the Code with respect to accident.

115 In Kaporonovski v The Queen [1973] HCA 35; (1973) 133 CLR 209, Gibbs J (Stephen J agreeing) distinguished between the unwilled physical acts or omissions of the accused apart from their consequences, on the one hand, and the 'accidental outcome of his willed acts', on the other, for the purposes of s 23 of the Queensland Code (226 - 227). Although the two parts of s 23 dealt with related matters, they were quite distinct (226). Gibbs J held that an event occurs by accident, within s 23, 'if it was a consequence which was not in fact intended or foreseen by the accused and would not reasonably have been foreseen by an ordinary person' (231).

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

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

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

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

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

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

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

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

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

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

(a) the State is not required to prove either that, subjectively, the accused intended or foresaw the precise mechanism or means of the victim's death as a possible outcome of the accused's actions or that, objectively, the precise mechanism or means of the victim's death would reasonably have been foreseen by an ordinary person, in the accused's position, as a possible outcome (excluding, in each case, possibilities that are no more than remote and speculative); and

(b) it is sufficient if the State proves either that, subjectively, the accused intended or foresaw the victim's death by some mechanism or means of the nature or kind in fact suffered by the victim as a possible outcome of the accused's actions or that, objectively, the victim's death by some mechanism or means of the nature or kind in fact suffered by the victim would reasonably have been foreseen by an ordinary person, in the accused's position, as a possible outcome (excluding, in each case, possibilities that are no more than remote and speculative).

See Hooper v The Queen [2000] WASCA 394; (2000) 116 A Crim R 510 [39], [46] - [50] (Wallwork J, Malcolm CJ generally agreeing); R v Stuart [2005] QCA 138 [19] - [22] (McMurdo P, Keane JA & Philippides J); R v Peachey [2006] QCA 162 [32] (Jerrard JA, Chesterman & Mullins JJ agreeing); R v Coomer [2010] QCA 6 [27] (Keane JA, Holmes JA & Margaret Wilson J agreeing). Compare R v Condon [2010] QCA 117 [19] (McMurdo P, Fraser & Chesterman JJA agreeing) and see the observations in relation to Condon made in R v Dykstra [2011] QCA 175 [56] - [57] (Margaret Wilson AJA, Fraser JA & Mullins J agreeing) and R v Wardle [2011] QCA 339 [29] (Fraser JA, Margaret Wilson AJA and McMeekin J agreeing).

122 All of the Queensland cases that I have just cited dealt with s 23(1) of the Queensland Code before it was amended, with effect from 4 April 2011, by the Criminal Code and Other Legislation Amendment Act 2011.

123 The opinion I have expressed is, of course, subject to the operation of s 23B(3) and s 23B(4). Those provisions apply where, relevantly, death is 'directly caused' to the victim by the accused's act 'that involves a deliberate use of force', but would not have occurred 'but for an abnormality, defect or weakness in the victim', even if the accused 'did not intend or foresee the death' and even if 'the death ... was not reasonably foreseeable'. It was not suggested, either at the trial or at the hearing of the appeal, that s 23B(3) and s 23B(4) applied in the present case.

124 In the present case, the State's case at trial, as confined by the trial judge in his summing up, was that the only manner in which the appellant's alleged terrorising of Mr Ferguson in the taxi was likely to endanger Mr Ferguson's life was by causing him to suffer a cardiac arrest.

125 Accordingly, the relevant act done by the appellant which allegedly caused Mr Ferguson's death was the appellant's alleged terrorising of Mr Ferguson in the taxi. The relevant 'event', within s 23B(2), was Mr Ferguson's death.

126 The State's concession that the trial judge was required to direct the jury on the defence of accident, notwithstanding that defence counsel did not ask his Honour to give the direction, was properly made. In particular, I am satisfied, on my examination of the trial record, that there was an evidentiary foundation for the propositions that the possibility of Mr Ferguson's death was not intended or foreseen by the appellant and the possibility of Mr Ferguson's death would not reasonably have been foreseen by an ordinary person, in the appellant's position, as a possible outcome.

127 In the circumstances, if the trial judge had left the defence of accident to the jury, the issue for the jury would have been whether the State had negatived the defence by proving beyond reasonable doubt either that:

(a) subjectively, the appellant intended or foresaw that a possible outcome of the appellant's alleged terrorising of Mr Ferguson in the taxi was Mr Ferguson's death by some physiological dysfunction of the nature or kind in fact suffered by him (namely, a cardiac arrest); or

(b) objectively, an ordinary person, in the appellant's position, would reasonably have foreseen that a possible outcome of the appellant's alleged terrorising of Mr Ferguson in the taxi was Mr Ferguson's death by some physiological dysfunction of the nature or kind in fact suffered by him (namely, a cardiac arrest).

128 An ordinary person, in the appellant's position, would of course be sober (that is, not intoxicated or affected by alcohol, drugs or other substances).

129 The determination by the jury as to whether the State had negatived the defence of accident would have required the jury to consider and evaluate all relevant facts and circumstances including, amongst other things, the appellant's alleged actions in terrorising Mr Ferguson; how an ordinary person, in the appellant's position, would have perceived Mr Ferguson's age and his physical and emotional condition; and how an ordinary person, in the appellant's position, would have perceived that the appellant's alleged actions had affected or may affect Mr Ferguson's well-being.

Appeal against conviction: count 2: the appropriate orders in relation to count 2 consequent upon ground 3 being made out

131 The State did not seek to rely on the proviso in s 30(4) of the Criminal Appeals Act 2004 (WA). Counsel for the State conceded that if ground 3 of the appeal against conviction was made out, then it could not be said that no substantial miscarriage of justice has occurred. The State's concession was properly made.

132 In Baiada Poultry Pty Ltd v The Queen [2012] HCA 14; (2012) 246 CLR 92, French CJ, Gummow, Hayne and Crennan JJ reiterated that an appellate court must undertake the task of determining whether to apply the proviso to the Australian common form criminal appeal statute in the same manner as it would decide whether the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence [27]. The task of determining whether no substantial miscarriage of justice has actually occurred must be undertaken on the whole of the trial record including the jury's verdict of guilty [27]. Their Honours then made two further points. First, the appellate court, in assessing the significance to be given to the jury's verdict of guilty, must pay proper regard to the issues the jury were directed to decide in order to arrive at a verdict of guilty [28]. Secondly, the statement by Gleeson CJ, Gummow, Kirby, Hayne, Callinan and Heydon JJ in Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300 [44], that the proviso cannot be engaged 'unless the appellate court is persuaded that the evidence properly admitted at trial proved, beyond reasonable doubt, the accused's guilt of the offence on which the jury returned its verdict of guilty', is a negative proposition [29]. The statement enunciates a necessary but not sufficient condition for the application of the proviso. French CJ, Gummow, Hayne and Crennan JJ observed in Baiada Poultry:

As this Court's decision in AK v Western Australia ((2008) [2008] HCA 8; 232 CLR 438 at 457 [58]) shows, demonstration that a chain of reasoning can be articulated that would require the verdict reached at trial does not always permit, let alone require, the conclusion that no substantial miscarriage of justice actually occurred [29].

See also Reeves v The Queen [2013] HCA 57; (2013) 88 ALJR 215 [50] - [51] (French CJ, Crennan, Bell & Keane JJ).

133 In Filippou v The Queen [2015] HCA 29; (2015) 89 ALJR 776, French CJ, Bell, Keane and Nettle JJ said that the phrase 'substantial miscarriage of justice', in this context, means that 'the possibility cannot be excluded beyond reasonable doubt that the appellant has been denied a chance of acquittal which was fairly open to him or her (Pollock v The Queen [2010] HCA 35; (2010) 242 CLR 233 at [70]; [2010] HCA 35; 84 ALJR 713) or that there was some other departure from a trial according to law that warrants that description (Baiada Poultry Pty Ltd v The Queen [2012] HCA 14; (2012) 246 CLR 92 at [22] - [23]; [2012] HCA 14; 86 ALJR 459 per French CJ, Gummow, Hayne and Crennan JJ; see, eg, AK v Western Australia [2008] HCA 8; (2008) 232 CLR 438 at [57] - [59]; [2008] HCA 8; 82 ALJR 534 per Gummow and Hayne JJ; at [109] - [110] per Heydon J)' [15].

134 It is unnecessary, in the present case, to consider whether there is any material difference or inconsistency between the approach to the proviso mandated by Weiss, on the one hand, and the observations of the plurality in Filippou as to the meaning of the phrase 'substantial miscarriage of justice' in the context of the proviso, on the other. See the views expressed by McLure P in Petersen v The State of Western Australia [2016] WASCA 66; (2016) 75 MVR 234 [16] - [27]. If there is any material difference or inconsistency it is of no consequence in the present case.

135 On my examination of the trial record and after weighing the evidence, in the context of the defence of accident, I am satisfied that a verdict of guilty of murder is not the only verdict reasonably open. I am therefore not satisfied beyond reasonable doubt as to the appellant's guilt on the charge of murder in count 2. Also, the possibility cannot be excluded beyond reasonable doubt that the trial judge's failure to leave the defence of accident to the jury denied the appellant a chance of acquittal on count 2 which was fairly open to him.

136 In my opinion, the appropriate orders in relation to count 2, consequent upon ground 3 having been made out, are to allow the appeal against conviction, set aside the judgment of conviction on count 2 and require that there be a new trial on that count. The interests of justice favour an order for a new trial on count 2 and not an order that there be a judgment of acquittal on that count. First, I am not satisfied, on my examination of the trial record, that the State has no reasonable prospect of negating the defence of accident. Secondly, on my assessment, if the State is able to negate the defence of accident then the admissible evidence adduced at the trial was sufficiently cogent to support a conviction on count 2. Thirdly, the facts and circumstances of the case do not render it unjust to make the appellant stand trial again on that count. See Director of Public Prosecutions (Nauru) v Fowler [1984] HCA 48; (1984) 154 CLR 627, 630 (Gibbs CJ, Murphy, Wilson, Deane & Dawson JJ).

Appeal against conviction: the alleged 'wash over' effect in relation to counts 1 and 3

137 Counsel for the appellant submitted that if either of the grounds of appeal in relation to count 2 succeeded then the judgments of conviction on all of the counts should be set aside and a new trial ordered.

138 According to counsel, it would be necessary to set aside the judgments of conviction on counts 1 and 3, even though the grounds of appeal related solely to count 2, because of the 'wash over' effect.

(a) The jury having found the appellant guilty of count 2, there was 'a very [real] risk ... that finding him guilty of such a serious offence would have adversely influenced the way [the jury] viewed his exculpatory statements [in his video record of interview with police] regarding [counts 1 and 3]' (appeal ts 3).

(b) The jury viewed the video record of interview in which the appellant 'gave an explanation regarding his culpability concerning each of the three counts', and plainly rejected his explanation in relation to count 2, namely that Mr Ferguson was asleep and the appellant had grabbed the steering wheel. In those circumstances, there was 'a very real risk [the jury] may well have thought that [the appellant] wasn't telling the truth [in his video-recorded interview] regarding what [he alleged] happened in relation to [counts 1 and 3]' (appeal ts 4).

140 According to counsel, 'the concept of the "wash over" effect' or 'the cumulative effect of ... errors' was considered in Parker v The Queen (Unreported, WASCA, Library No 950259, 26 May 1995).

Appeal against conviction: the alleged 'wash over' effect in relation to counts 1 and 3: the merits of the appellant's argument

141 Counsel for the appellant's argument as to the alleged 'wash over' effect in relation to counts 1 and 3 is without merit. My reasons are as follows.

142 First, the sole ground on which the appellant's appeal against conviction in relation to count 2 has been made out is the failure of the trial judge to direct the jury on the defence of accident.

143 Secondly, it was not contended in this appeal, and it could not reasonably have been contended, that the defence of accident had any relevance to count 1 or count 3.

144 Thirdly, the trial judge gave orthodox directions to the jury in his summing up that it was necessary for the jury to deliberate and reach a verdict separately on each of the three counts and that the verdicts need not be the same on each count (ts 596).

145 Fourthly, the real or essential issues in contest at the trial in relation to counts 1 and 3 were radically different from the real or essential issues in contest in relation to count 2. In particular:

(a) the real or essential issue in relation to count 1 was whether the appellant had detained Mr Ferguson within the taxi;

(b) the real or essential issue in relation to count 2 was whether the appellant had caused Mr Ferguson's death; and

(c) the real or essential issue in relation to count 3 was whether the appellant had detained Ms Tippett at the office or warehouse premises (ts 607 - 608).

146 Fifthly, the elements of the offences the subject of counts 1 and 3 and the appellant's defence at trial in relation to those counts were, in combination, materially different from the elements of the offence the subject of count 2 and the appellant's defence at trial in relation to that count.

147 Sixthly, the decision of the Court of Criminal Appeal in Parker was relevantly concerned with whether the cumulative effect of various errors made by the trial judge was that the trial process was 'fundamentally flawed'; that is, whether the trial process, in light of the totality of the trial judge's errors, had gone seriously wrong. Each member of the court (Malcolm CJ, Ipp & Steytler JJ) was of the opinion that the cumulative effect of the trial judge's errors was so fundamental as to go to the root of the proceedings with the consequence that the proviso in s 689(1) of the Code (see, now, s 30(4) of the Criminal Appeals Act) had no application: Wilde v The Queen [1988] HCA 6; (1988) 164 CLR 365, 373 (Brennan, Dawson & Toohey JJ). None of the members of the court referred to a 'wash over' effect, either in the sense used by counsel for the appellant in the present case or at all. The term 'wash over' effect was used by counsel for the appellant in Osborne v The State of Western Australia [2013] WASCA 106 and Hunter v The State of Western Australia [2014] WASCA 184; (2014) 245 A Crim R 191. The submission made in each of those cases, based on the 'wash over' effect, was rejected. See Osborne [33]; Hunter [65], [107].

148 Seventhly, the present case is not a case in which the fundamental presuppositions of a criminal trial were not observed. The trial judge's failure in relation to count 2 did not adversely affect the appellant's defence or the fairness of his trial in relation to count 1 or count 3.

149 Eighthly, I am satisfied, on my examination of the trial record, that:

(a) there is no reasonable possibility that the jury's verdict of guilty on count 2 would have adversely influenced the manner in which the jury evaluated the appellant's exculpatory statements in his video record of interview regarding counts 1 and 3; and

(b) there is no reasonable possibility that, as a consequence of the jury's decision to convict the appellant on count 2, the jury may have decided that the appellant was untruthful in his video record of interview regarding his account of events in relation to counts 1 and 3.

150 Ground 2 as amended is without merit. Leave to appeal on that ground should be refused. However, ground 3, for which leave to appeal has already been granted, has been made out.

151 I would allow the appeal against conviction. The judgment of conviction entered on count 2 should be set aside. There should be a new trial on that count, but the judgments of conviction entered on counts 1 and 3 should not be disturbed.

152 The appellant's application filed 4 June 2015 for leave to adduce additional evidence in the appeal against conviction did not materially advance his case and should be dismissed. Similarly, the appellant's application for leave to rely on Ms Muhling's affidavit sworn 1 September 2015 and the written submissions filed 1 September 2015 in the appeal against conviction did not materially advance his case and should also be dismissed.

153 The appellant relies on three grounds in his appeal against sentence.

154 Ground 1 alleges that the minimum non-parole period of 17 years' imprisonment imposed on count 2 was manifestly excessive.

155 Ground 2 alleges that the individual sentences of 8 years' imprisonment imposed on each of counts 1 and 3 were manifestly excessive.

156 Ground 3 alleges that the total effective sentence of 12 years' imprisonment imposed on counts 1 and 3 infringed the first limb of the totality principle.

157 On 6 June 2015, Mazza JA granted leave to appeal on ground 1 and referred the application for leave to appeal on grounds 2 and 3 to the hearing of the appeal.

Appeal against sentence: the trial judge's sentencing remarks and the appellant's personal circumstances

158 The trial judge summarised in his sentencing remarks the facts and circumstances of the offending.

159 His Honour made the following findings and comments about the impact of the appellant's offending, the subject of count 3, on Ms Tippett:

[The appellant's] behaviour towards Mrs Tippett at Richards Mining Services was also very hostile. She was plainly in fear of her life. She responded with extraordinary resilience and thoughtfulness, and remained calm and courageous through an extremely dangerous and distressing episode. Fortunately, she has escaped without any injury but the experience has left her, as one would expect, with the memories of great fear and the disturbances which inevitably affect such a frightening experience. The effect on her, I am satisfied, is also very great [25].

160 The appellant was born on 21 March 1967. He was aged 46 at the time of the offending and was 48 when sentenced.

161 The appellant was single and, before committing the offences, lived in Waikiki, but had an itinerant lifestyle throughout the State. He was in receipt of a disability pension.

162 The information before the trial judge included a psychiatric report dated 31 March 2015 from Dr Victoria Pascu, a consultant forensic psychiatrist.

163 The appellant has limited education. He was in a special learning area in secondary school until the age of 14. The appellant is unable to read or write. He has a long history of polysubstance abuse and mental health disorders; in particular, chronic paranoid schizophrenia and dissociated personality disorder. He has no meaningful social or family supports and has a long term itinerant lifestyle. The appellant has hepatitis C and hypothyroidism.

164 Dr Pascu's clinical diagnosis was chronic paranoid schizophrenia, currently on treatment and in partial remission, but with some residual symptoms; mental and behavioural disorders due to multiple illicit substance abuse, mainly methamphetamine but also cannabis and opiate-based analgesics, currently abstinent while in custody; and antisocial personality disorder.

165 Dr Pascu concluded that, as a result of his partly treated chronic paranoid schizophrenia and against the background of his antisocial personality disorder and significant illicit drug abuse, the appellant's risk to others in the community will remain significant unless his schizophrenia is treated better and he abstains from the use of illicit drugs. She doubts that he would genuinely engage in drug counselling or managing his anger, problem solving and other difficulties.

[The appellant's] frequent bouts of psychiatric symptoms are in many, if not most, instances due to his misuse of drugs. So it was in this case, but the evidence is, and I find, that he was not in any psychotic condition when these crimes were committed [40].

167 The appellant has a long record of prior offending. He has previous convictions for robbery; burglary and committing an offence in a dwelling (multiple offences); burglary with intent in a dwelling; breaking, entering and stealing (multiple offences); stealing (multiple offences); stealing a motor vehicle; receiving; assault occasioning bodily harm; assaulting a public officer; common assault (multiple offences); hindering police; unlawful damage (multiple offences); escaping legal custody; breach of bail (multiple offences); breach of community-based orders (multiple offences); forging and uttering; disorderly conduct (multiple offences); possessing a prohibited drug (multiple offences); unlawfully damaging property (multiple offences); carrying an article with intent to cause fear that someone will be injured or disabled; threatening words or behaviour; and reckless driving and other traffic offences. He has previously served, on numerous occasions, terms of immediate imprisonment.

168 In ground 1, the appellant contends that the minimum non-parole period of 17 years' imprisonment imposed on count 2 (that is, the murder count) was manifestly excessive.

169 I have decided that the appeal against conviction should be allowed, the judgment of conviction entered on count 2 should be set aside and there should be a new trial on that count. At the new trial it is possible that the appellant may be acquitted of murder and convicted of a lesser offence; in particular, unlawful assault causing death contrary to s 281(1) of the Code. It is unnecessary and, in the circumstances, inappropriate to determine ground 1. The ground should be dismissed without adjudication and without this court expressing an opinion as to its merits.

170 In ground 2, the appellant contends that the individual sentences of 8 years' imprisonment imposed on each of counts 1 and 3 were manifestly excessive. Ground 2 does not allege that the trial judge made any express error.

171 A ground of appeal which asserts that a sentence is manifestly excessive asserts the existence of an implied or inferred error. It is necessary, in determining whether a sentence is manifestly excessive, to examine it from the perspective of the maximum sentence prescribed by law for the relevant offence, the standards of sentencing customarily observed with respect to that offence, the place which the criminal conduct occupies on the scale of seriousness of offences of the kind in question, and the personal circumstances of the offender.

172 Section 332(2)(a) of the Code provides that any person who detains another person with intent to gain a benefit, pecuniary or otherwise, for any person, by a threat, or by a demand, or by a threat and a demand, is guilty of a crime and is liable to imprisonment for 20 years.

173 The guidance afforded by comparable cases is flexible rather than rigid. The mere fact a sentence is within the range of other sentences imposed for similar offending does not necessarily establish that there was an appropriate exercise of the sentencing discretion in the particular case. Similarly, the mere fact a sentence is outside the range does not necessarily establish that the exercise of the sentencing discretion in the particular case miscarried.

174 A sentencing range for comparable offences is merely one of the factors to be taken into account in deciding whether an individual sentence is manifestly excessive. A range of sentences customarily imposed is of significance for the purpose of ensuring broad consistency in the sentencing of offenders in broadly comparable cases. However, a sentencing range for comparable cases does not fix the range of a sound exercise of the sentencing discretion in a particular case.

175 When this court dismisses an appeal against sentence, and when it allows an appeal against sentence and resentences the offender, this court's decision on the sentencing outcome does not, of itself, fix the upper or lower limit of the range.

176 The discretion conferred on sentencing judges is, of course, of fundamental importance and this court may not substitute its opinion as to sentencing for that of the sentencing judge merely because it would have exercised the discretion in a different manner.

177 I have read and considered a number of cases involving appeals against sentence for offences against s 332(2) of the Code. In particular, I have reviewed the facts and circumstances, and the sentencing dispositions, in Peters v The Queen [2000] WASCA 28; Payne v The Queen [2002] WASCA 186; (2002) 131 A Crim R 432; Ahmad v The Queen [2003] WASCA 234; Tubb v The State of Western Australia [2007] WASCA 106; Wheeler v The State of Western Australia [2008] WASCA 111; Eriha v The State of Western Australia [2011] WASCA 167; Starr v The State of Western Australia [2011] WASCA 170; and the cases referred to in those decisions. It is unnecessary to reproduce the relevant facts and circumstances or the sentences imposed in the previous cases. There are some comparable features between some of those cases, on the one hand, and the present case, on the other, but there are also distinguishing features.

178 As to count 1, the appellant detained Mr Ferguson in a confined space, directed him to drive to various locations and subjected him to a terrifying ordeal. The appellant was armed with a knife and behaved in a manner which suggested he was prepared to use it against Mr Ferguson if his demands were not met. The appellant physically restrained Mr Ferguson when he attempted to leave the taxi and dragged him back inside. The appellant's behaviour was not moderated by the efforts of his associates who were present in the taxi during some of the offending. It is true that the period of offending was substantially shorter than the period of offending in other kidnapping cases, but that fact must be balanced against the heightened and sustained terror inflicted on Mr Ferguson while the appellant was in the taxi.

179 As to count 3, the appellant threatened Ms Tippett. In particular, he made a threat to kill if his demand for a taxi to be called was not met. He demonstrated his apparent ability to act upon his threats by the overt possession of a knife and other objects. Ms Tippett was vulnerable. She was isolated with the appellant in her place of work. He was aggressive and volatile. The appellant was not deterred by the consequences of his previous offending against Mr Ferguson. It is true that Ms Tippett was resourceful and astute in dealing with the appellant, but that circumstance does not diminish the seriousness of his offending. In any event, as his Honour noted, the impact of the appellant's behaviour upon Ms Tippett was considerable. Although the offending did not occupy an extended period, it was not fleeting or momentary and was brought to an end only by the arrival of the police.

180 The appellant will continue to pose a significant risk to the personal safety and the property of other members of the community unless his chronic psychotic illness is treated better and he abstains from illicit drugs. His prospects of rehabilitation are poor.

181 The principal sentencing considerations were appropriate punishment and personal and general deterrence.

182 There was little by way of mitigation. The appellant has a serious mental illness. However, there was no causal connection between his serious mental illness, on the one hand, and his offending, on the other. The unchallenged finding of the trial judge was that the appellant 'was not in any psychotic condition when these crimes were committed' [40]. The fact that he had taken methylamphetamine was not, of course, mitigating. The appellant lacked insight into his offending and accepted no responsibility for his criminal behaviour. He expressed some remorse to Dr Pascu (but not the author of a pre-sentence report) about his behaviour in the taxi and the death of Mr Ferguson.

183 The appellant was entitled to plead not guilty and require the State to prove the charges against him. However, he was consequently not entitled to the mitigation that pleas of guilty would have brought.

184 The appellant was not youthful or inexperienced for sentencing purposes.

185 The appellant did not have the mitigation of being otherwise of good character. He has a serious and extensive prior criminal record. Although the appellant's previous convictions, and the fact that the previous sentences had not achieved the purposes for which they were imposed, did not aggravate the seriousness of the offending in question, those matters underscored the importance of personal deterrence as a sentencing consideration.

186 Although the individual sentences of 8 years' imprisonment for each of counts 1 and 3 were high, I am not persuaded that they were manifestly excessive. In other words, when each of those sentences is viewed from the perspective of the maximum penalty (20 years' imprisonment), and after taking into account all relevant facts and circumstances and all relevant sentencing factors, including:

(c) the general pattern of sentencing for offences of this kind;

(d) the importance of appropriate punishment and personal and general deterrence as sentencing considerations; and

I am of the opinion that the length of the term of imprisonment for each of counts 1 and 3 was not unreasonable or plainly unjust.

187 Each individual sentence of 8 years' imprisonment, although high, was nevertheless within the range open to the trial judge on a proper exercise of his discretion.

189 In ground 3, the appellant contends that the total effective sentence of 12 years' imprisonment imposed for counts 1 and 3 infringed the first limb of the totality principle. Ground 3 does not allege that the trial judge made any express error.

190 A ground of appeal that alleges a breach of the totality principle asserts an implied or inferred error based on the sentencing outcome. The first limb of the totality principle requires that the total effective sentence imposed on an offender who has committed multiple offences must bear a proper relationship to the overall criminality involved in all of the offences (including those, if any, in respect of which the offender is still serving a term of imprisonment), viewed in their entirety, and after having regard to all relevant circumstances, including those referable to the offender personally (and including, for example, the desirability of accommodating any wish to rehabilitate), and the total effective sentences imposed in comparable cases.

191 The practical effect of the totality principle is ordinarily to arrive at a total effective sentence which is less than that which would have been arrived at merely by adding up all of the terms appropriate for the individual sentences. See Roffey v The State of Western Australia [2007] WASCA 246 [26] (McLure JA, Steytler P & Miller JA agreeing). Also, the severity or leniency of an individual sentence is relevant in evaluating whether the total effective sentence infringes the first limb of the totality principle. See Giglia v The State of Western Australia [2010] WASCA 9 [40] (Owen JA, McLure P & Pullin JA agreeing).

192 The so-called one transaction rule or continuing episode rule is not, of course, a rule at all, but merely a guideline. Ultimately, each case must depend on its own facts and circumstances. See Worthington v The State of Western Australia [2005] WASCA 72; (2005) 152 A Crim R 585 [23] (Steytler P). That is, the sentencing court must decide, in each case, whether the application of the guideline would result in an appropriate measure of the total criminality involved in the offending conduct.

193 I have noted, in considering ground 2, a number of sentencing principles that are relevant not only to an allegation of manifest excess but also to an allegation of an infringement of the first limb of the totality principle.

194 I have already examined, in the context of ground 2, the appellant's offending in relation to counts 1 and 3 and his personal circumstances and antecedents.

195 As I have mentioned, the individual sentences for counts 1 and 3 were high. The principle in Giglia was relevant in the application of the first limb of the totality principle.

196 In my opinion, the total effective sentence of 12 years' imprisonment in relation to counts 1 and 3 was not commensurate with the overall seriousness of the offending. The total effective sentence did not bear a proper relationship to the criminality involved in counts 1 and 3, viewed

together, and having regard to all relevant facts and circumstances and all relevant sentencing factors, including the seriousness of the offending as a whole, the pattern of sentences in reasonably comparable cases and the aggravating and mitigating factors. The proper exercise of the sentencing discretion required lesser accumulation of the individual sentences. I would imply or infer error, based on the first limb of the totality principle, from the sentencing outcome.

Appeal against sentence: the result of the appeal and the resentencing of the appellant

198 Leave to appeal should be granted on grounds 2 and 3. Leave to appeal has already been granted on ground 1.

199 I would allow the appeal in relation to counts 1 and 3 on the basis of ground 3 but not on ground 2. I would dismiss the appeal in relation to count 2.

200 This court has the material necessary to resentence the appellant on counts 1 and 3.

201 The individual sentences imposed by the trial judge should not be disturbed. However, his Honour's orders in relation to concurrency and cumulacy should be set aside.

202 After taking into account the maximum penalty, the facts and circumstances of the offences charged in counts 1 and 3 and all other relevant sentencing factors, I would impose a total effective sentence of 9 years' imprisonment. The appellant should be ordered to serve 1 year of the individual sentence of 8 years' imprisonment for count 1 before he commences serving the individual sentence of 8 years' imprisonment for count 3. The individual sentence for count 1 should be taken to have taken effect on 24 April 2013. The appellant remains eligible for parole. He will be eligible to be considered for release on parole when he has served 7 years calculated from 24 April 2013.