COOMER -v- THE STATE OF WESTERN AUSTRALIA [2024] WASCA 133 (31 October 2024)

1. The decisive issue for the jury in this case was whether the person who stabbed the deceased and caused his death was the appellant.
2. In his reasons, Vandongen JA, while not ignoring the other evidence adduced by the State in support of its case that the appellant was the assailant, focused on the digiboard identification of the appellant by Joel Britto. Mr Britto's digiboard identification of the appellant is compelling. However, there was other evidence which, when considered in combination with the evidence of Mr Britto, further strengthens the conclusion that the verdict of guilty was not unreasonable, and that there was no significant possibility that an innocent person had been convicted.
3. I will begin with some observations about Mr Britto's evidence. Mr Britto did not know the appellant at the time of the offending. He said that he saw the deceased being stabbed with a 5 to 6‑inch blade to the neck and chest area by a man wearing a hat, shorts and possibly a yellow shirt. This evidence is largely, but not completely, consistent with the footage in 'file 2A'.[4] As captured in file 2A, the knife being used by the assailant appears to have a short blade, and is being quickly and repeatedly thrust into the neck and upper body of the deceased. As shown in that video, the assailant is wearing a baseball cap and shorts. However, the assailant is not wearing a yellow shirt, but another person who was assaulting the deceased at the same time (Taylor Bainbridge) is wearing a bright yellow shirt. Given their close proximity to each other, it is understandable that Mr Britto mistakenly thought that the assailant was wearing a yellow shirt.
4. Mr Britto's digiboard identification of the appellant was video recorded. No complaint was made about the fairness of the procedure. The recording was played to the jury and tendered as exhibit 5. Having viewed the video recording, I agree with Vandongen JA at [318], that Mr Britto unhesitatingly places a finger on the photograph of the appellant. Mr Britto expresses no doubts about his identification. The digiboard, which was tendered as exhibit 6, contained photographs of men of sufficient similarity to the appearance of the appellant.
5. Briar Connal also identified the appellant in a digiboard procedure. She had not previously met the appellant. This procedure was also video recorded. Again, no complaint was made about its fairness. The video recording was played at the trial and tendered as exhibit 7. I have viewed the recording. Ms Connal unhesitatingly picked out the appellant's photograph. It is a compelling piece of evidence.
6. The appellant sought to impugn Ms Connal's digiboard identification by pointing out that the day after the commission of the offence, Ms Connal had viewed video footage she had taken on her mobile telephone of the killing (which became file 2A) with one of her friends, who named the person stabbing the deceased as the appellant.[5] Up to this point, Ms Connal was unaware of the name of the person who had stabbed the deceased.
7. At the time of her digiboard identification, Ms Connal was aware that a person named Kingston Coomer had been accused of being the deceased's assailant. It is not Ms Connal's knowledge of the name of the alleged assailant that is significant to an assessment of her digiboard identification. Rather, it is the accuracy of her digiboard identification of the appellant's photograph that matters. Ms Connal was plainly present when the deceased was killed. She was close enough to record the incident on her mobile telephone. While lighting at the scene was an issue to be considered, the thrust of the evidence overall is that there was enough light to enable Ms Connal (and others) to see what occurred.
8. Then, there is the evidence of Seth Gorman. It was not disputed that Mr Gorman witnessed the stabbing. He did not know the appellant, but had seen photographs of him on social media sites tagged with the appellant's name. Significantly, Mr Gorman was aware that the appellant had a scar on the left side of his face. Mr Gorman, who was 4 to 5 m away from the incident in which the deceased was stabbed, said that the person that he knew as Kingston Coomer was the assailant, and that he was able to see a scar on the assailant's face. The fact that Mr Gorman saw the scar and that the appellant has a scar on his face supports the conclusion that the appellant was the assailant.
9. Jack McAuliffe knew the appellant, having seen him on a 'handful' of prior occasions. Mr McAuliffe knew the appellant well enough to say hello to him and to shake hands with him.
10. Mr McAuliffe recognised the appellant as one of the group of young men who chased the deceased prior to the assault and stabbing. He also recognised the appellant as being the person who stabbed the deceased. Mr McAuliffe said that he was only 1 or 2 m away from the stabbing.
11. Mr McAuliffe described the assailant as wearing 'long pants, black shoes, black shirt and a coloured jumper'.[6] This description is plainly wrong. This is because the person shown in file 2A stabbing the deceased was wearing white shoes, shorts, a green‑coloured shirt and no jumper. Mr McAuliffe also agreed, in cross‑examination, that in his first statement to police he did not mention seeing the appellant stab the deceased. In cross‑examination, when asked about this discrepancy, he answered, in substance, that, when he gave the first statement, he did not want to relive the event.
12. I do not have the advantage that the jury had of seeing and hearing Mr McAuliffe testify. Having regard to this advantage, the jury was entitled to accept his identification of the appellant, notwithstanding that he was mistaken about the appellant's attire and the discrepancy between his first police statement and his evidence.
13. I now turn to the evidence of Taylor Bainbridge. Mr Bainbridge had consumed about 24 bottles of beer on the night in question. He gave evidence that the appellant, whom he had only been introduced to on the night of the party, was present at the scene after the deceased had been assaulted. He also confirmed that the person in file 2A with a knife in his hand was the person that he named as Kingston Coomer. One of the reasons he gave for naming Kingston Coomer was that, earlier in the night, the appellant had taken his little brother's baseball cap, which the assailant was wearing in the footage.
14. Mr Bainbridge also gave evidence that, after he arrived in prison on remand for related charges, he saw the appellant, who said that he was 'sorry' for 'stabbing him'.[7] If the jury accepted the honesty and reliability of Mr Bainbridge's evidence about this conversation, the statement made by the appellant was capable of being accepted as an admission by the appellant that he was the one who had stabbed the deceased.
15. The reliability of Mr Bainbridge's evidence as to the events of the night in question was adversely affected by his intoxication. His evidence generally might be doubted having regard to the matters in [83] of Vandongen JA's reasons. However, the jury had the advantage, that I do not, of having seen and heard Mr Bainbridge give evidence, and thus were in a much better position than I am to assess the credibility of what he said occurred on the night. A jury may well regard Mr Bainbridge as having retained some memory of the events in question and could recall the appellant's participation in the altercation which led to the death of the deceased.
16. In the assessment of the evidence that I have referred to, it is important to have regard to it not in isolation, but in combination. The digiboard identifications of Mr Britto and Ms Connal are compelling. There is nothing about the circumstances in which they were conducted which was unfair to the appellant. Each of them swiftly, and definitively, identified a photograph of the appellant as the offender. Neither of Mr Britto nor Ms Connal appeared to have had any agenda against the appellant. The identifications occurred independently of each other and on different days. The State's case was strengthened, at least to some extent, by the evidence of Mr Gorman and Mr McAuliffe. Further support came from the evidence of Mr Bainbridge acknowledging his status as a co‑offender who received very considerable advantages for agreeing to give evidence against the appellant.
17. The jury were comprehensively directed by the trial judge as to the dangers of an accused person being wrongly identified. In analysing ground 5, I have had regard to such matters. In particular, I have had regard to the fact that the offence occurred at night, in circumstances where the lighting was imperfect and where the action unfolded suddenly, and in circumstances which anyone would find confronting. I am mindful that nearly all of the eyewitnesses were young, and that an identification witness, or more than one identification witness, may be honest and apparently convincing, but ultimately unreliable.
18. A very important factor to be balanced with all of the other evidence is that the appellant gave sworn testimony in which he denied being part of the group who pursued the deceased and that he was the person who stabbed him.
19. For the reasons given by Vandongen JA at [307], I agree that the appellant's denials during his testimony lacked credibility and could

properly be rejected. The evidence of identification, particularly by Mr Britto and Ms Connal, would also lead to the jury's rejection of the appellant's denials under oath. So, too, could the admission referred to in the evidence of Mr Bainbridge.

1. I have had particular regard to Mr McAuliffe's evidence concerning the shoes and clothing worn by the assailant as he recalled, and the shoes and clothing of the assailant as shown in file 2A. This discrepancy must, of course, be weighed along with all of the other evidence relevant to the identification of the appellant as the assailant. I do not regard this discrepancy as being of such a nature as to give rise to a conclusion that the conviction was unreasonable. Mr McAuliffe knew the appellant. In my opinion, it is well open to conclude that Mr McAuliffe, while incorrectly recalling the attire of the assailant, was nevertheless correct when he testified that it was the appellant who stabbed the deceased. Even if Mr McAuliffe's evidence is put to one side, there remains a very compelling body of evidence which is well capable of establishing that the appellant was the assailant to the requisite criminal standard.
2. When all of the evidence is viewed as a whole, making full allowance for the advantages enjoyed by the jury, in my opinion there is no significant possibility that an innocent person has been convicted. In this case, I am satisfied that the jury, acting rationally, would have entertained no reasonable doubt as to guilt. In my opinion, the verdict is not unreasonable and is supported by the evidence. Ground 5 has not been made out.

1. I agree with Vandongen JA, generally for the reasons he gives, that this appeal against conviction must be dismissed. I also agree with Mazza JA that there is evidence in addition to that of Joel Britto which strengthens the conclusion that the verdict of guilty was not unreasonable. When all of that evidence is taken into account, there is no significant possibility, in my opinion, that an innocent person has been convicted. The verdict was not unreasonable and is supported by the evidence.

1. After a trial in the Supreme Court, a jury found the appellant guilty of murdering a 17‑year‑old boy by repeatedly stabbing him with a knife after they had both been at a house party in Waikiki. The only issue at the trial was whether the State had proved beyond reasonable doubt that the appellant was the person who killed the deceased.
2. The appellant challenges his conviction for murder, contrary to s 279 of the Criminal Code (WA). He relies on several grounds of appeal, including a ground that contends that the jury's verdict was unreasonable or that it cannot be supported having regard to the evidence.
3. For the following reasons, each ground of appeal is without merit. Leave to appeal must be refused in relation to all grounds and the appeal is thereby taken to have been dismissed.

1. On 12 December 2020, the deceased was with some friends at a party being held at a home in Waikiki. The State case was that the appellant was also at the party, with a group of people including Javontay Dunn, Taylor Bainbridge, Tame Graham and Adam Davis.
2. The party started to wind down at about 11.00 pm when many of the young people who had been at the party, including the deceased, started to spill out onto the surrounding streets. Some fighting broke out in the street, and, at one point, the deceased was chased down the street by a number of people including the appellant's acquaintance, Mr Bainbridge.
3. The deceased was chased to a house a short distance away from where the party had been held, and he was then knocked to the ground near to where a white four‑wheel drive was parked in a driveway. The deceased was then punched and kicked while he lay on the ground. Mr Bainbridge was one of the men assaulting the deceased.
4. The State alleged that while Mr Bainbridge was assaulting the deceased, the appellant pulled out a knife and repeatedly stabbed the deceased. The State alleged that after initially stabbing the deceased, the appellant walked a short distance away before he returned to where the deceased was still lying on the ground, and he again stabbed the deceased multiple times.
5. The deceased was taken to hospital and was declared dead soon after. A postmortem examination of his body revealed that 34 separate stab wounds had been inflicted to various parts of his body. Two of those stab wounds were of particular significance. Underlying a wound to one of the deceased's legs was a cut to an artery. Another artery in one of the deceased's arms was also cut. The deceased suffered from catastrophic blood loss which ultimately caused his death.
6. The State relied on the evidence of several eyewitnesses to prove that the appellant was the person who inflicted those stab wounds. The State also relied on footage of the assault that was recorded on mobile telephones.

1. As the appellant's trial counsel told the jury in his opening address, the only issue at the trial was whether the State had proved beyond reasonable doubt that the appellant was the person who stabbed the deceased.
2. The defence placed particular emphasis on differences between an eyewitness' description of what the appellant was wearing on the night of the alleged offence, and on what the appellant was wearing when he was arrested several days later, when compared to what could be seen in the mobile telephone footage of the clothes being worn by the person who was alleged to have stabbed the deceased.
3. The appellant also gave evidence that he did not assault the deceased, and that he had been wrongly identified as the person who stabbed the deceased.

1. The appellant relies on the following grounds of appeal:
   1. The learned trial judge erred in putting before the jury inadmissible evidence of an alleged admission of guilt raised in cross examination of the appellant.

(i) Counsel for the State put to the appellant a question in cross examination 'Did you say to [J] at any point, "I'm pretty sure I'm the one that stabbed that bloke"? to which the answer from the appellant was 'No'. (T301)

(ii) The learned trial Judge directed the jury: 'He denied saying to his mate that he was pretty sure that he was the one who stabbed that bloke'. (T450)

(iii) This put in the jury's mind a potential admission of guilt and thereby deprived the appellant of a fair trial.

1. Counsel for the State wrongly reversed the onus of proof on the question of identity in cross examining the appellant and in closing, resulting in a miscarriage of justice.

(i) Identity was the central issue of the defence case.

(ii) State counsel asked the appellant in cross‑examination - 'You knew that out there a lot of people were saying you murdered this boy who died at the party. Is that right?' and suggested that the appellant should have been doing more to protest his innocence after the party. (T303)

(iii) State counsel in closing stated 'The only witness who says the stabber was someone other than Kingston Coomer is Kingston Coomer himself. And not being flippant but he would say that wouldn't he? One view you may take is someone's lying here.' (T334)

(iv) This deprived the appellant of a fair trial and led to a miscarriage of justice.

1. A miscarriage of justice was occasioned by the admission of recognition and identification from witnesses who gave evidence that they only (a) knew the appellant from social media and/or (b) where social media, or suggestion, or the sharing of photographs and videos had tainted the identification evidence.
2. [Ground 4 was withdrawn]

4A. A miscarriage of justice was occasioned by video footage of the assault which had been enhanced by police being shown to the jury during the evidence of witnesses without direction wrongly promoting an impression of the accuracy of the identification evidence.

1. The verdict of the jury was unreasonable and was not supported by the evidence.

(a) The description by witnesses of the appellant's clothing and appearance on the night is contrary to witnesses' description and video footage of the assault;

(b) There are significant inadequacies in witness recognition and identification evidence; and

(c) Witness recognition and identity evidence is tainted by the influence of social media and sharing of photographs, video and social media following the incident.

1. As one of the grounds on which the appellant challenges his conviction is that the verdict of guilty on which that conviction was based was unreasonable or cannot be supported, it is convenient to commence with a more detailed summary of the evidence adduced at the appellant's trial.

1. As I have already said, the prosecution called several witnesses who were present on the night the deceased was attacked and killed. Many of those witnesses were still quite young at the time they gave evidence at the appellant's trial.

1. Mr Britto was 17 years of age, and still at school when he gave evidence.
2. He was at the party in Waikiki with his friends, Seth Gorman and Jack Anthony. He said that there were a lot of people at the party when he arrived. One of the people Mr Britto met at the party was the deceased. He said that he said hello to him and introduced himself, but that was 'about it'. Mr Britto consumed 'a few cans' of 'Double Black Smirnoff' at the party.
3. Mr Britto said that when the party broke up, people began fighting out in the street. While he was out on the street with Mr Gorman, Mr Britto saw the deceased running from a group of five or six boys. He said they chased the deceased until he tripped. They then started to attack the deceased while he lay on the ground underneath a four‑wheel drive.
4. During the attack on the deceased, Mr Britto saw someone with a knife in his hand, who he thought had a hat on, shorts and possibly a yellow shirt. According to Mr Britto, the knife had a handle and a 5‑inch to 6‑inch blade. He said that the person used a stabbing motion, which was directed at the deceased and appeared to make impact on his chest and neck area. Mr Britto had not seen the person who had the knife at any point earlier that night at the party.
5. Mr Britto later participated in an identification procedure during which he was shown a 'digiboard'.[8] From the digiboard, Mr Britto selected a photograph of the appellant as the person he had seen stabbing the deceased.
6. In cross‑examination, Mr Britto accepted that he saw several fights that involved a large number of people. He was also asked questions about whether he had seen any photographs or videos of what had occurred after the party through social media or otherwise. Mr Britto said that he was not using Facebook at the time of the assault on the deceased, but that he was at the time of the trial. He agreed that a few photographs had been shared, although he was not asked any question about what was depicted in those photographs or when he saw them. Mr Britto also agreed that one of his friends, Madison Clarke, had given him a video which depicted the stabbing.
7. In re-examination, Mr Britto explained that he watched the video Ms Clarke had sent to him after he selected the appellant's photograph from the digiboard during the identification procedure. He said that the person he selected was the person he recognised from the night of the incident.

1. Mr Gorman was also 17 years of age, and still at school, at the time he gave evidence.
2. Mr Gorman attended at the party in Waikiki. He remembered being at the party with several of his friends, including the deceased and Mr Britto. He was not affected by any drugs or alcohol at the time.
3. Mr Gorman recalled that fights broke out in the street after the party finished. He said that at one point the deceased ran past him and stuck out his hand and said 'help' as he was being chased by a group of about five people. Mr Gorman said he went to help the deceased, but found him lying on the ground next to a car where a group of boys were surrounding him. He said that some of the boys were on top of the deceased, hitting him. He also said that one of them had a knife and that he was stabbing the deceased.
4. When asked whether he knew the person who was stabbing the deceased, Mr Gorman gave the following evidence:[9]

All right. Well, we'll focus, if we can, on the person you believe had a knife who was stabbing him. Do you know who - did you know who that person was?---Kingston.

Do you know his last name?---Coomer.

And prior to this party, had you - did you know Kingston Coomer?---I'd never spoken to him but I'd seen him on Instagram before.

All right. Now, for those people not familiar with Instagram, you better explain how that works. How do you get to know someone on Instagram?---There's like profiles, private and public, and then when you have friends they post photos. And then I had a couple of his friends added as friends on Facebook, so when they post it comes up on my feed. And he was tagged and pictured in those photos.

And had you seen - prior to this, whatever was happening by the four‑wheel drive, had you seen Kingston Coomer at any point earlier that evening at this party?---No.

Okay. And prior to the night of this party had you actually seen Kingston Coomer face to face, as in terms of you being in the same room as him, or were all your encounters on Instagram?---No, no, never in person.

Okay. So it was essentially you'd become familiar with Kingston Coomer based on Instagram. Is that correct?---Yeah, mutual friends.

All right. So this person you've come to know in that way, did he have any specific facial feature that you can recall?---A scar on his left cheek.

1. Mr Gorman said that he saw 'Kingston Coomer' standing over the deceased, stabbing him multiple times in his legs and chest area, while the deceased was lying on the ground and trying to protect himself. Mr Gorman said that he was approximately 4 m to 5 m away from where this was occurring and that it was dark, although there were streetlights and telephone cameras.
2. When he was asked whether he knew any of the other people who were in the vicinity when he saw the deceased being stabbed, Mr Gorman said that he knew Tame Graham and Adam Davis from Instagram and Facebook. Mr Gorman also said that he saw one of the deceased's best friends in the vicinity as well.
3. Mr Gorman said that he had been sent a video of the assault on the deceased at some stage after the party. He was unable to recall who had sent him the video but said that when he looked at it, he was only able to 'partly' identify who was in the video.
4. In the presence of the jury, the State prosecutor then showed a video to Mr Gorman. The video was described as 'file 2A'. Mr Gorman gave the following evidence about what he could see in that video, without any objection:[10]

Mr Gorman, did you - were you able to see that video?---Yeah.

You said it was quick. On that video we see a person who appears to be in a yellow shirt. At the time you were watching that video did you know who that - sorry. At the time did you know who that person was?---I was told it was Javontay's older brother, and I only learnt his name after the event occurred.

Okay. So at the time on 12 December 2020 you didn't know who that person was?---No.

Okay. Now, look, it's a matter for the jury what they see in this - in that video, but I suggest it shows to the right of the person in the yellow shirt there's a person with a greenish-coloured top and a baseball cap back to front. He appears to have a knife in his hand, making repeated stabbing motions. Is that what you saw in that video?---Yeah.

Who is that man?---Kingston Coomer.

1. In a short cross‑examination, Mr Gorman confirmed that he only knew 'Kingston Coomer' from photographs he had seen on social media. When it was put to him that he didn't know how tall Kingston Coomer was or what he weighed, he said that the photographs included pictures next to other people that he knew and 'full-body pictures'. He also confirmed that the person shown in 'file 2A', who he agreed was wearing white shoes, and who was bending over and making a stabbing motion, was the person he knew as Kingston Coomer.
2. When asked whether he was able to see a scar on the stabber's face, despite it being dark and lightly raining, Mr Gorman said 'that wasn't the only thing I seen of him' and 'I saw it all'. Mr Gorman said he was at the front of a big pack of people.

1. Mr McAuliffe was 18 years of age at the time he gave evidence.
2. He confirmed that he too attended a house party in Waikiki on 12 December 2020. He said that he went to the party with Seth Gorman and Joel Britto. While he was at the party he met his good friend, the deceased.
3. Mr McAuliffe also said that shortly after he arrived at the party, he saw the appellant in a group of five or six other boys. He said that he had met the appellant through friends two years prior to the party and that during that time he would have seen the appellant on a 'handful' of occasions. Mr McAuliffe explained that he would sometimes see the appellant in the city and on other occasions at parties. When he saw the appellant, he would shake his hand and say hello. Of the group of five or six boys, he had known the appellant the longest.
4. Mr McAuliffe explained that after the party shut down, he saw the deceased being chased along the road. He said that, initially, the deceased was being chased by the appellant and three other boys, who he said were Tame, Javontay, and Javontay's older brother. They chased the deceased around the corner, where he disappeared out of Mr McAuliffe's sight. Mr McAuliffe then ran after them. By the time he reached them, the deceased was underneath a white ute four‑wheel drive. He then saw the deceased being dragged out from underneath the car, but was not sure who had done that. He said he then saw the deceased being punched and kicked, and being repeatedly stabbed by the appellant. At that time, Mr McAuliffe was only 1 m or 2 m away from where the deceased was being stabbed. His evidence was that it was dark. Mr McAuliffe also said that he only saw the appellant stabbing the deceased.
5. Mr McAuliffe said that after the stabbing finished, the appellant ran off. He could see that the appellant had something in his hand, which he dropped while he was running away. Mr McAuliffe then went to provide assistance to the deceased.
6. When he was asked whether he had consumed any alcohol, Mr McAuliffe explained that he had 'a can of Jack Daniels' before arriving at the party, but that he did not drink any alcohol while he was there. He said that he was not intoxicated at the time he saw the appellant stabbing the deceased.
7. In cross‑examination, Mr McAuliffe agreed that he had previously told police in his witness statement that the appellant was wearing 'long pants, black shoes, black shirt and a coloured jumper'.[11] The significance of this evidence was that the person that can be seen in the mobile telephone footage ('file 2A'), and who was alleged to have stabbed the deceased, was wearing shorts and white shoes.
8. Mr McAuliffe agreed that in his first statement he did not tell police that he had seen the deceased being stabbed. He also agreed that he had been sent some videos of the incident by a girl called 'Briar', but he said, 'you couldn't see it'.[12]
9. In re-examination, Mr McAuliffe gave evidence that he had provided police with two witness statements. The first statement was provided on 22 December 2020, while the second statement was provided shortly before the commencement of the trial. He accepted that his first witness statement did not include any reference to the fact that he actually saw the stabbing take place. Mr McAuliffe explained:[13]

And why did you not tell the detectives in your first statement that you had actually seen the stabbing?---Because what we saw that night no one should ever see it, and I didn't want to relive what I saw again.

1. In relation to his evidence that he had been sent a video, Mr McAuliffe said:[14]

And my last question. You were asked something about a video that you had seen that someone had sent to you?---Yes.

And I think you started to say something about you couldn't see - just - just tell us what you could see in that video?---Literally... nothing. Like, it was pitch black. The video was pitch black. You could just hear. All you could see was a couple - all you could see was a - a couple of trees. And then when she put the phone to the ground it was a footpath and then you could just see people in front of it. You couldn't see the actual thing.

So when you gave evidence here today that it was Kingston Coomer who you saw stabbing [the deceased], was that based on what you saw on the night or something you had seen on a video later on?---It's something I saw on the night.

1. Mr Bainbridge was 28 years of age at the time he gave evidence.
2. He confirmed that he drove his half-brother, Javontay Dunn, Tame Graham, Adam Davis, and the appellant to the party in Waikiki. Mr Bainbridge was meant to drop his half‑brother off at the party, but he ended up going inside and staying.
3. Mr Bainbridge said that by the time he had arrived at the party, he had drunk approximately 24 bottles of beer. He explained that he was a regular drinker at that time and so whilst he was intoxicated, he did not consider himself to be drunk, and he 'still knew what was going on'. He said that he drank one or two more bottles of beer while he was at the party.
4. Mr Bainbridge said that he had never met the appellant before driving him to the party. However, he said that since 12 December 2020, he had spent time in the appellant's company, including when they both appeared in court in relation to this matter.
5. Mr Bainbridge said that when he was at the party he was hit on the head with a beer bottle. He did not see who threw the beer bottle, but he decided to chase after the closest person next to him. It was not in dispute that this person was the deceased. Mr Bainbridge chased the deceased until they ended up near a white four‑wheel drive. He then punched the deceased until he went to the ground. Mr Bainbridge then kicked, punched and stomped on the deceased while he was on the ground.
6. While this was occurring, Mr Bainbridge knew that his brother, Javontay, was there because Mr Bainbridge pushed him away a few times. Otherwise, Mr Bainbridge did not realise that anyone else was involved in the assault on the deceased. In particular, he did not notice anyone there with a knife.
7. Mr Bainbridge said that after the assault had finished, he walked away with his brother, Tame, Adam and the appellant. However, he said that when he and his brother, and Tame, drove back to a relative's home, he did not see where the appellant had gone.
8. Approximately two or three days later, after seeing what had happened on the news, Mr Bainbridge voluntarily handed himself in to police. Mr Bainbridge gave evidence that, in effect, he did this because the deceased was not supposed to die, and he did not know that this had occurred at the time.
9. The prosecutor showed Mr Bainbridge four video clips. Those video clips were recorded on a USB stick which later became exhibit 3.
10. In the video clip referred to as 'file 2A', Mr Bainbridge identified himself as the person in a yellow shirt and a white baseball cap. He also identified another person who could be seen in that clip wearing a green top and a cream‑coloured baseball cap, which was being worn backwards. Mr Bainbridge confirmed that this person, who had a knife in his hand, was 'Kingston Coomer'. Mr Bainbridge also identified Tame Graham in file 2A, his brother in file 2B, himself, Adam Davis and 'Kingston Coomer' in file 3A, and himself, Tame Graham, Adam Davis, and 'Kingston Coomer' in file 4A.
11. He was also shown a still image taken from 'file 2A'. Mr Bainbridge confirmed that both he and 'Kingston Coomer' were depicted in that photograph.
12. Finally, Mr Bainbridge gave evidence that he had spent some time in the same prison as the appellant where he was being held on charges arising out of the incident that led to the death of the deceased. Mr Bainbridge said that shortly after he arrived in prison, the appellant told him that he was 'sorry for stabbing him'.[15]
13. In cross‑examination, Mr Bainbridge confirmed that at the time of the assault on the deceased he was unaware that anybody had a knife or that there had been a stabbing. He said that he now appreciated that somebody had a knife because of the video footage. In relation to the appellant's involvement in the assault, Mr Bainbridge gave the following evidence:[16]

You didn't know Kingston was involved. You didn't know anything?---It's clearly [sic] from the video footage that he was involved.

It was only when you saw in the video - - -?---Yeah.

- - - that you said, 'Oh, that's Kingston'?---Yep.

I get you. Because Sergeant Miller quite rightly showed you the video, didn't he? He played it?---At the time, yes.

Yes?---But it wasn't as clear as what they are [now]. I think they've been enhanced or something.

This is at page 764, the same interview, and you say:

- they're showing you that photo. You're saying:

Oh, well, it's either Kingston or my little brother.

You weren't sure. That's what you said here?---Can you read the whole sentence, please?

Yes. All right:

Do you know that's Kingston or you just think that's Kingston?

That's what Sergeant Miller says. Right? You say:

No, I think that's Kingston because he took the hat off my little brother. He was wearing it later that night. I remember.

Kingston took your brother's hat?

Yeah, yeah, yep. I think.

So that's the same hat?

Oh, well, it's either Kingston or my little brother, but my little brother had that - that shirt on so that - that's green. That's Army green. Yeah. Army green shirt that I was talking about. That's why I think it's Kingston.

Right?---Yeah.

So you - you just think it's Kingston because of what you saw?---Yeah.

You could be wrong?---About that video?

Well, you could be wrong - - -?---Everyone can see that's Kingston.- - -

- on what you saw. Because you'd never met Kingston before that night, had you?---No.

1. Mr Bainbridge was also cross examined about the fact that he had originally been charged with murder, that it had been reduced to a less serious offence, and that when he was sentenced he received a 25% discount for his early plea of guilty, as well as an additional 30% discount for his cooperation.

1. Ms Waaka was 16 years of age and was still at school at the time she gave evidence.
2. Ms Waaka went to the party in Waikiki on 12 December 2020 with four of her friends. She had been drinking alcohol at the party. She said that she had consumed about half of a small bottle of 'Divas' wine.
3. At the time of the party, Ms Waaka knew a person by the name 'Kingston Coomer'. She explained that she had seen that person on a couple of occasions at parties, although she had never had a face‑to‑face conversation with him and she could not recall any items of clothing that he would wear on those occasions.
4. Ms Waaka also knew the deceased. She had known him for approximately one year as an acquaintance she had met at parties and via social media.
5. Ms Waaka gave very limited evidence. She said that she did not see the assault on the deceased as she was on the other side of the road at the time.

1. Ms Connal was 16 years of age at the time she gave evidence and she was still at school.
2. She attended at the Waikiki party with a friend. She explained that she did not drink any alcohol at the party.
3. Ms Connal said that when everyone moved to the street at the front of the house after the party finished, she saw the deceased running along the street away from somebody wearing a yellow shirt. She then saw the deceased fall over before he was 'mobbed' by a number of boys. She was unable to identify all of those boys but named 'Kingston Coomer' and Tame Graham. She said that she was pretty sure that a boy called 'Alex' was also there.
4. However, Ms Connal explained that she had not known 'Kingston Coomer' before the party. She said that she had only heard of him. In that regard, Ms Connal gave the following evidence, without objection:[17]

Okay. All right. Well, you've mentioned the name Kingston Coomer. I'm going to ask you some questions about him. Before this party had you known him? Did you know Kingston Coomer?---No.

Okay. Did you know of him?---I've heard of him, yeah.

And in what circumstance had you heard of him?---Just people talking about him. Nothing - nothing, like, specific. Just, like, about him.

Okay. So when you say - you said Kingston Coomer was one of these people who was mobbing [the deceased]. So when you looked at him, how were you able to look at him and say that's Kingston Coomer? How did you know him?---Well, I had recorded on my phone and then after, when I was looking back at the recording, I realised.

What did you realise?---That Kingston Coomer was involved.

Okay. And - I'm just trying to get a sense of how it was you recognised who Kingston Coomer is. I mean, before this party had you seen him? Even if it wasn't face to face, had you seen him anywhere else?---Well, I was with my friend and she kind of knew a little bit of him and we recognised that it was him.

Okay. What about social media? Had you ever seen him on that?---No.

So it was really just from - from being around and - and - - -?---Yeah.‑ ‑ ‑ being around people who knew him. Is that fair to say?---Yes.

Okay. And did you have any dealings - anything to do with him at this party on 12 December 2020?---No.

1. Ms Connal also gave evidence that she saw several boys punching the deceased while he was on the ground unable to defend himself. At the time, she did not realise that the deceased was being stabbed, because she said that it looked like he was only being punched. It was only when she was looking back at the video that she had taken on her mobile telephone that she realised that someone had a knife.
2. Ms Connal then gave evidence that she had recorded the assault on the deceased using her mobile telephone. The footage recorded by Ms Connal was described as 'file 2A'. That footage was played during Ms Connal's evidence. After it was played, Ms Connal gave the following evidence, again without objection:[18]

Now, Ms Connal, did you see that footage all right?---Yes.

All right. Now, that might be brighter than you remember it because police have worked on it, but is that part of the footage that you took on your phone?---Yes.

Do you know who that is - and don't guess, but do you know who that is in the yellow shirt?---No.

We see a person in a baseball cap on backwards doing what appears to be some stabbing motions towards someone on the ground. Who's that?---Kingston Coomer.

1. The State prosecutor then asked Ms Connal a series of questions about an identification procedure that she took part in 'fairly shortly after' the incident.[19]
2. Ms Connal confirmed that she took part in a 'digiboard interview'[20] with police, during which they showed her a series of photographs. She said that she selected a photograph from that series of photographs and gave evidence that the person depicted in that photograph was 'Kingston Coomer'.
3. Finally, Ms Connal said that the assault on the deceased went on for just under five minutes or so, that Kingston Coomer was one of the people who was involved in the assault, and that she saw him run off but did not see where he was heading.
4. In cross‑examination, Ms Connal confirmed that she had never spoken to the appellant, she could not recall how tall he was, and she had no idea how much he weighed. She also gave the following evidence:[21]

You don't. In - in - in the statement you made - it's a long time ago. It's back on the 15th of [December 2020]. So that's a long time ago, isn't it?---Mm hmm.

All right. But you did say that you had Kingston on your Facebook or you knew him from Facebook. I'll - I'll read what you said. Hang on:

I recognise male two as Kingston Coomer. Kingston, a person who I know through Facebook and Instagram.

Is what's in your statement?---After that incident I did try and find him off Facebook.

1. Although this evidence was not further explored, it appears that the reference to Ms Connal's statement was a reference to a witness statement she gave to police shortly after the assault on the deceased took place. Further, as the photograph she chose during her 'digiboard interview' was photograph nine, the reference in Ms Connal's statement to 'male two' must be a reference to something other than the digiboard she was shown by police. Accordingly, what she said in cross‑examination cannot be understood as evidence that she selected the appellant's photograph from the digiboard after she tried to find him on Facebook.
2. However, Ms Connal agreed that she had sent the footage to a friend of the deceased and gave the following evidence in cross‑examination:[22]

One in court?---Yeah. I only sent it to one person.

I see. Yes. All right. And then you looked at the - you looked at the film you took; is that right?---Yeah.

And someone said that's Kingston to you, isn't it?---Yes.

So that's how you knew it was Kingston?---Yeah.

1. In re-examination Ms Connal agreed that the person she had described as 'Kingston', one of the group who was mobbing the deceased, was the person she identified in the digiboard.

1. Ms Clarke was 17 years old at the time she gave evidence.
2. She attended at the party in Waikiki. She had been drinking alcohol, including some wine, some cans of cider and some 'Cruisers'.
3. Ms Clarke remembered seeing a boy curled up on the ground underneath a white ute with four doors. She said that she ran up from behind and was close to what was happening. She saw two boys kicking and surrounding the boy on the ground. One was a male in a green shirt who was 'throwing hits' at the boy, and kicking him on the ground. Ms Clarke said that she tried to break up the fight while recording what was happening on her mobile telephone at the same time.
4. The prosecutor then played some footage to Ms Clarke, which was described as 'file 1A', and which she confirmed was footage that she had taken using her mobile telephone.
5. Ms Clarke said that she did not see anyone with a knife while the assault was happening, but when she stood back after it happened, she saw the knife. She said that she saw the knife in the possession of the boy wearing the green shirt who she had grabbed while trying to break up the fight. She confirmed that he was wearing a light or brown‑coloured baseball cap. She said that she saw this person walking away with the knife in his left hand and threatening other people in the crowd.
6. In a very short cross‑examination, Ms Clarke said that she could see blood on the ground where the assault had taken place, and that there was blood on the fence and walls near the car as well. She also saw blood 'gushing' out of the deceased, coming out of his thigh, as well as blood on the grass underneath the deceased. She confirmed that anyone standing there would have seen the blood.

1. Ms Devine was 16 years old at the time she gave evidence and was still at school.
2. Ms Devine also went to the Waikiki party, but she had not been drinking alcohol. She said that she saw a man yelling at the deceased, before he then chased the deceased along the street. She then saw the deceased trip and the man in the yellow shirt hit him. She explained that a few more people joined in punching and kicking the deceased, including Tame Graham and someone called 'Adam'.
3. Ms Devine said she saw a man wearing a 'beige Raiders hat' stabbing the deceased at least eight times. She said she was pretty sure the man was wearing dark clothing. She also said that the lighting was quite dark, although she could still clearly see what was going on.
4. Ms Devine said that she did not see anyone else with a knife apart from the man with the hat.

1. Detective Pitts is a Detective Sergeant in the homicide squad and was the investigating officer.
2. Detective Pitts gave evidence that during her investigation mobile telephone footage was obtained from various people who attended at the party in Waikiki. A USB stick containing all of the video footage previously shown to witnesses during the course of the trial was tendered as exhibit 3.
3. Detective Pitts explained that although she was not responsible for the production of exhibit 3, the lighting in the mobile telephone footage recorded on that exhibit had been enhanced by police technical staff in order to make it brighter. There was no objection to Detective Pitts' evidence, and no further clarification about the process of enhancement was elicited.
4. Thirteen still shots taken from video footage in exhibit 3 were tendered as exhibit 4.
5. The prosecutor also elicited evidence from Detective Pitts about the identification procedures that Mr Britto and Ms Connal took part in on the days following the death of the deceased. Detective Pitts confirmed that both Mr Britto and Ms Connal selected photographs of the appellant from their digiboards when they underwent their identification procedure. Those procedures were recorded and the recordings were tendered.[23] Both Mr Britto and Ms Connal identified the appellant as a person involved in the matter under investigation.
6. Detective Pitts gave evidence about the fact that police had been unable to recover the weapon used to stab the deceased and said that although the deceased's clothes had been forensically tested, only the deceased's DNA was identified on his clothing. The appellant's DNA had not been located on the clothing. She also said that a photograph was taken of the appellant after his arrest on 17 December 2020, and a copy of that photograph was tendered as an exhibit.[24] That photograph demonstrated that the appellant had a small scar on the left side of his face, over his cheek bone.
7. In cross‑examination, the appellant's counsel attempted to elicit evidence from Detective Pitts about the difficulties attendant upon making accurate identifications from video footage. The cross‑examination was largely ineffectual.

1. Dr Vagaja is a forensic pathologist who gave evidence about the injuries that were found on the deceased's body at a post‑mortem examination.
2. Given the issues raised by the grounds of appeal, it is unnecessary to summarise Dr Vagaja's evidence.

1. The appellant gave evidence in his defence.
2. The appellant was 18 years old at the time of the incident that resulted in the deceased's death.
3. The appellant denied that he caused any of the stab wounds described in Dr Vagaja's evidence. He also denied that he was at the party when the deceased was stabbed.
4. However, the appellant did accept that he went to the party in Waikiki, and that he had been driven there by Mr Bainbridge. He said that Javontay Dunn and Tame Graham were in the car. He said that he had never met Mr Bainbridge before that day.
5. The appellant also denied speaking to Mr Bainbridge while they were in prison together, although accepted that he may have spoken to him when they were both at court together.
6. The appellant said that when he went to the party, he was wearing black shoes with a gold tip, black jeans and a black shirt. He also denied wearing a hat and said that he did not have a bag with him. The appellant's reference to a bag was a reference to mobile telephone footage which showed that the person who the State alleged was stabbing the deceased appeared to have a black strap around his body, which may have been attached to a bag of some sort.
7. The appellant gave evidence that Adam Davis had made his own way to the party and that he joined their group after they arrived.
8. The appellant agreed that after about 11.00 pm, the partygoers were told to leave the premises. He said that everyone was fighting at the front of the house. However, the appellant said that he did not remember being involved in any fighting. He said that he walked off and went to his cousin's house.
9. When the appellant was asked when he found out that there had been a 'terrible killing',[25] he said that it was the following day when he went to a friend's house. His evidence was:[26]

When did you find out about it?---The next day. I went to a mate's house. They were saying it was all over Facebook and Instagram saying everyone was saying that it was me, don't know.

Was it you?---No. Someone mentioned my name and everyone just went along with it, I guess.

1. The appellant then told the jury that when he was eventually arrested, his clothes were taken from him, and he was charged with murder.
2. When his counsel read the count in the indictment to him, and asked him whether he murdered the deceased, the appellant said that he did not.
3. In cross‑examination, the appellant confirmed that Mr Bainbridge drove him and two of his friends to the party, and that when they arrived, they all walked into the party together. He accepted that Mr Bainbridge had correctly identified himself, Javontay Dunn, Adam Davis and Tame Graham in the mobile telephone footage attacking the deceased. He also accepted that Mr Bainbridge and those three other boys were part of a group that had either travelled to the party with him, or who he and his group of friends had met up with at the party after they had arrived.
4. When the appellant was asked to identify the other person depicted in the mobile telephone footage who was, on the prosecution case, stabbing the deceased, the appellant said that he did not know who that was and that he was not there at the time. The following exchange then took place:[27]

But you accept that the people who appear to be attacking [the deceased] on the ground, leaving the stabber aside, were the people in your group: Bainbridge, Dunn, Davis and Graham?---Yeah.

But you say you, the fifth person of that group, wasn't the fifth person we see attacking [the deceased]. Is that your evidence?---Yeah.

1. The appellant was also asked several questions about where he had stayed the night before the party in Waikiki, and where he had planned to stay after leaving the party.
2. The appellant said that he did not recognise anybody involved in the fighting that he saw. However, he said that he did not think of going to find his friends when the fighting broke out, or about whether he could secure a lift home from Mr Bainbridge. The appellant said he only had to walk around the corner to his cousin's home, where he was let in and allowed to stay the night.
3. The appellant said that he changed his shirt at his cousin's house.
4. The appellant then gave evidence about what he did the following day, after waking up at his cousin's house. He said that he caught an Uber to a friend's house in Booragoon, where he spent a few hours, just talking. The appellant agreed that his friend had clothes at his house.
5. The appellant then said that after an hour or so, he went to another friend's house in Kwinana. He also agreed that his friend had clothes at this house.
6. The appellant was asked whether he was suggesting that the clothes he was wearing when he was arrested five days after the assault on the deceased were the same clothes he was wearing when he went to the party. The appellant said that he had the same shoes and jeans on, but not the same shirt and jumper.
7. The prosecutor also explored with the appellant why he had left the party without saying goodbye to the people he had arrived with, or without seeing if they might leave with him. The appellant said that he just wandered off because he was 'going to do his own thing'.
8. The appellant confirmed that he had never had an argument or a fight with Mr Bainbridge, that they had never fallen out, and to the best of his knowledge, Mr Bainbridge had no reason to dislike him. The appellant denied that he had ever said to Mr Bainbridge that he was 'sorry for the stabbing'.
9. Ultimately, the appellant denied the prosecutor's suggestions that he had stabbed the deceased to death and denied that he was depicted in any of the mobile telephone footage tendered in evidence.
10. A reasonably significant focus of the cross‑examination was on the evidence the appellant had given about how he found out he was being accused of murder and what he did, and did not do, in response. The appellant was also asked a question about whether he had made an admission to the friend that he saw on the day after the assault. This cross‑examination is the subject of ground 2, and it will be dealt with in more detail in that context.

1. The way in which this ground of appeal is expressed suggests that the appellant's complaint is that the trial judge erred by 'putting' inadmissible evidence before the jury. However, the trial judge did not 'put' any evidence before the jury. Based on submissions made by the appellant's counsel at the hearing of the appeal, the appellant's real complaint is that a solitary question asked by the State prosecutor in his cross‑examination of the appellant, which was not objected to by the appellant's experienced trial counsel, occasioned a miscarriage of justice.
2. The relevant part of the cross‑examination of the appellant in which the prosecutor asked the impugned question is as follows:[28]

Okay. And you woke up the next day?---Yeah.

And what, you found - what - what - you tell us, how did you find this out about you being accused of this murder?---Cos [sic] I looked on my phone and my name was everywhere. There was a photo of me saying I done it, so yeah.

Bit of a shock, was it?---Yeah, it was.

Okay. So you saw that. And what, were people posting about you?---Yeah.

And saying it was you?---Yeah.

All right. At any point, did you post back, 'No, it wasn't'?---I never said nothing.

You never said anything?---No.

So all these messages are going on Instagram and Facebook and what have you about you being the killer. You've got a phone but you didn't post back, 'You're wrong, it wasn't me'?---No.

Were you not concerned that these accusations about you were flying around?---Yeah, I was concerned.

You were, okay. So you went from your cousin's house and where did you go after that?---I went to Bulls [sic] Creek.

Halls - - -?---Bulls [sic] Creek, Booragoon.[29]

Booragoon. And whose house was that?---Mate's house.

That's a mate's house. And what mate is that?---Aye?

Who's - who's that mate?---[J].

Who?---[J].

[J]. Okay. Is that a house in Parmelia?---Aye?

Is that in Parmelia?---No.

No?---Parmelia's in Kwinana.

Okay. How did you get to [J]'s house?---I got a Uber.

Pardon?---I got Uber.

All right, so you had money for an Uber?---Yeah.

Okay. And what did you do at [J]'s house?---Nothing, just sit back, talk to him.

All right. Did you say to [J] at any point, 'I'm pretty sure I'm the one that stabbed that bloke'?---No.

So there you were at [J]'s house, and who else was at [J]'s house?---I don't know, a couple of his mates. I don't know who they was.

And how old is [J]?---Probably 17 now.

How old was he at the time? About 15, 16, was he?---Probably, yeah.

He's got clothes in his house presumably, has he?---Yeah. (emphasis added)

1. The impugned question has been emphasised in this extract of the appellant's evidence.
2. To explain the context in which the prosecutor asked the impugned question, it is necessary to refer to a witness statement that was signed by a juvenile, 'J', on 29 December 2020, and which appeared in the appeal books filed in advance of the hearing of the appeal (witness statement). It is also necessary to refer to an affidavit affirmed by the prosecutor who represented the State at the appellant's trial. By an application filed on 26 June 2023, the respondent applied for leave to adduce the trial prosecutor's affidavit as additional evidence in the appeal. At the hearing of the appeal, the appellant's counsel indicated that he did not object to the affidavit being adduced in evidence in the appeal. In those circumstances, I would allow the respondent's application.
3. According to the witness statement, J arrived at the party when the fighting had already broken out in the street. He did not want to stay and so he left with some acquaintances. That night, he slept at his mother's house. When he got up the next morning, J saw the appellant walk into the house. J said he had known the appellant for a while but had become friends in the last couple of years.
4. In his witness statement, J said that the appellant 'was really upset' and that he was crying. Importantly, J's witness statement recorded that the appellant said, 'I'm pretty sure that I'm the one that stabbed that bloke'.
5. J was not called to give evidence at the appellant's trial. According to the trial prosecutor's affidavit, although J was served with a witness summons to attend and give evidence at the trial, in the lead up to the commencement of the trial, he made it very clear that he would not attend the trial in answer to his summons.
6. The trial prosecutor further explained:
   1. [J] was a child at the time of making his statement to police on 29 December 2020, and remained under the age of 18 at the time of the trial. He also had a familial connection with the appellant and had strongly indicated his unwillingness to engage with the ODPP and to give evidence at the trial.
   2. In those circumstances, a decision was made not to seek a warrant for the arrest of a juvenile witness, enforcing the summons to give evidence. The appellant's defence counsel did not oppose this course nor otherwise require [J] to be produced as a witness.
   3. Whilst [J] conveyed his strong opposition to engaging with the ODPP and giving evidence at the trial, he did not at any stage resile from the contents of his statement dated 29 December 2020 either in whole or in part.
7. It is regrettable that the trial prosecutor asked the impugned question. It is difficult to avoid a conclusion that the jury were being invited to engage in impermissible speculation about whether the appellant had made an admission of guilt to a juvenile relative who was not called by the State as a witness. The impugned question naturally built upon the appellant's evidence that he had visited J on the day following the stabbing, which he had volunteered in cross‑examination. Regardless of the prosecutor's intentions, in that context there was at least a risk that the impugned question might be regarded by the jury as having some basis in fact, especially as it contained what is likely to have been perceived as a reasonably precisely worded statement.
8. However, the appellant does not suggest that the asking of the impugned question amounted to a failure to observe the requirements of the criminal process in a fundamental respect. The issue is whether the impugned question amounted to an error or irregularity that realistically could have affected the verdict of guilt.[30]
9. The appellant's experienced trial counsel did not object to the impugned question. Counsel also did not make any application to discharge the jury or seek any specific directions to ameliorate any perceived prejudice occasioned by the impugned question. Accordingly, it is difficult to conclude that there was an error or irregularity amounting to a miscarriage of justice. In general, accused persons are bound by decisions made by counsel.[31]
10. In any event, when the trial judge's directions of law, that the jury were bound to follow, are taken into account, there is no basis for concluding that the impugned question realistically could have affected the verdict.
11. The trial judge instructed the jury, in orthodox terms, both at the commencement of the trial[32] and in his final directions,[33] that counsel's questions were not evidence. Operating on the assumption that juries understand and follow instructions that are given to them by trial judges,[34] these directions required the jury to arrive at their verdict on the basis that there was no evidence that the appellant had made any admission to J.
12. The trial judge also instructed the jury that they were not permitted to guess or speculate about matters that were not in evidence, and that they were required to apply that direction throughout their deliberations.[35] In this context, the trial judge reminded the jury that they had heard reference in the evidence to several people who had not been called as witnesses, and instructed them that they were not to speculate about what any of those people might have said had they been called to give evidence.[36] The jury must be taken to have understood that direction to extend to, and to include, not speculating about what J may have said had he given evidence at the trial.
13. The jury were also told that it would be unfair to the State and to the appellant to decide the case by taking into account or speculating about matters that were not the subject of evidence presented in the courtroom.[37]
14. In my view, these directions were comfortably sufficient to avoid any perceptible risk of a miscarriage of justice occasioned by the asking of the impugned question.
15. This ground of appeal is without merit. Leave to appeal must be refused.

1. There are two issues raised by this ground of appeal. Firstly, the appellant contends that a miscarriage of justice was occasioned because the prosecutor reversed the onus of proof in his cross‑examination of the appellant, and in his closing address, in relation to what the appellant did after, on his version of events, he first learnt that he was being accused of murder. Secondly, the appellant says that a miscarriage of justice was occasioned because the prosecutor made a submission in his closing address which tended to suggest that the appellant should be disbelieved because he had an interest in the outcome of the trial.

1. To understand the first issue raised by the ground of appeal, it is necessary to reproduce relevant passages of the cross‑examination and of the prosecutor's closing address. To give some context to those passages, it is also necessary to refer to part of the appellant's evidence‑in‑chief.
2. In his evidence‑in‑chief, the appellant told the jury that he went to the party in Waikiki. However, he said that at about 11.00 pm, everyone was told to get out, and that fights then broke out at the front of the house. The appellant said that he did not remember fighting and said that he walked off to his cousin's house.
3. The appellant then gave the following evidence:[38]

All right. You've seen all the evidence, there was a terrible killing?---Yeah.

Were you there for that?---Nah.

When did you find out about it?---The next day. I went to a mate's house. They were saying it was all over Facebook and Instagram saying everyone was saying that it was me, don't know.

Was it you?---No. Someone mentioned my name and everyone just went along with it, I guess.

1. In cross‑examination, after questioning the appellant about some other matters, the prosecutor asked the appellant questions about what he did after he left the party. After the prosecutor confirmed the appellant's evidence that he walked to his cousin's house where he stayed the night, the following exchange took place:[39]

And you woke up the next day?---Yeah.

And what, you found - what - what - you tell us, how did you find this out about you being accused of this murder?---Cos [sic] I looked on my phone and my name was everywhere. There was a photo of me saying I done it, so yeah.

Bit of a shock, was it?---Yeah, it was.

Okay. So you saw that. And what, were people posting about you?---Yeah.

And saying it was you?---Yeah.

All right. At any point, did you post back, 'No, it wasn't'?---I never said nothing.

You never said anything?---No.

So all these messages are going on Instagram and Facebook and what have you about you being the killer. You've got a phone but you didn't post back, 'You're wrong, it wasn't me'?---No.

Were you not concerned that these accusations about you were flying around?---Yeah, I was concerned.

1. A short while later, after the prosecutor established that the appellant then went to J's house after he woke up, the appellant gave the following evidence:[40]

Okay. So there you are at [J's] house. And were you still checking your - your Facebook to see what people were saying about you?---No, not really.

No?---No.

Had you - had you lost interest by that point, had you?---Yeah.

You weren't concerned any more?---No, I was still concerned, but there was still people talk, you know what I mean, so nothing I can say if - once someone's saying this and someone's saying that.

But you weren't interested in checking what people were saying while you were at [J's] house?---No.

What were you doing at [J's] - - -?---What?

- - - [J's] house?---I wanted to go see him.

I beg your pardon?---I wanted to go see him, like I see mates every day.

And did you spend the evening there on 13 December?---No, I was only there for about an hour or two.

An hour or two. Okay. And then where did you go? To your aunt's house?---No, I went to Kwinana then, back to Kwinana.

What was that, another Uber, was it?---What?

Was that another Uber?---No, one of his mates dropped me off there.

Okay. So you got a lift back to - or to Kwinana. Is that correct?---Yeah.

And whose house did you go to in Kwinana?---I went to a mate's house.

And what mate's that?---[T].

Okay. How old's [T]?---About 20.

He's got clothes in his house presumably, has he?---I don't know. Most probably. It's a house. Clothes everywhere in a house.

Okay. So at what point did you go to your aunt's house?---Hey?

At what point did you go to your aunt's house?---I never went to my auntie's house.

Sorry, I thought I - when you gave evidence a little bit earlier you said you went to your mate's house - - -?---You said where was - you asked me where I was going to go after the night. I said I'll either go to my auntie's house or my cousin's house.

All right?---That's what you said.

But in fact you went to your mate's house?---Yeah, I went to my - yeah, later that day.

All right?---The next day.

So for the five days after this incident between when you left the party and when the police arrested you, how were you spending your time?---What I normally do. What do you mean, like how I'll be spending my time?

Well, exactly that. What were you doing during the time in those days that you were awake? What - what were you doing? How were you spending your time?---So I do what I normally do. I go to - with the boys motorbike riding. I go to the shops. I sit back. I do what I do, what I normally do in a normal day.

Okay. So do I understand you woke up in the morning of 13 December after this party and you were being accused of murdering a child at the party. That - that was your understanding?---Yeah.

You knew that out there a lot of people were saying you murdered this boy who died at the party. Is that right?---Yeah.

And having read that and seen what everyone was saying about you, you went motorbike riding. Is - is that what you're saying? Is that what you're telling the court?---Yeah.

That's what you did?---Yeah.

Okay. Right, okay. And what else did you do apart from motorbike - just talking to your mates, did you?---Yeah.

Spending - did you not care anymore what people might be saying about you?---I did care. I just tried to keep my mind off it.

Right. Did you think of ringing the police and saying, 'Look, there's been all these rumours. I need to clear this up. Can I come and see you'?---No. Police was looking for me for another incident anyways from when I was a juvenile.

All right. So you didn't want to interact with the police?---No.

Okay. But at no point did you say or post online anything like, 'It wasn't me. Stop talking about me,' anything like that?---I said it once, yeah.

1. The prosecutor eventually relied on this cross‑examination in his closing address in support of a submission that there were aspects of the appellant's evidence that were 'implausible'. In that regard, the prosecutor said:[41]

We'd suggest that aspects of his evidence were implausible.

Being accused of murder all over social media, not deigning to respond after some initial interest, not even bothering to check, not discussing it to any extent with his mates, not trying to clear it up with police. If you were being accused falsely of murder, a crime that you didn't commit, I'd suggest you'd be shouting your innocence from the rooftops. You'd be doing what you could to clear your name.

What does the accused do? On his evidence, he goes bike riding, hanging out with his mates and generally getting on with his life, just waiting for the police to catch up with him in due course. Is that consistent with the conduct of an innocent man, or is that conduct that is more consistent with the conduct of a man who knows what he's done and is fatalistically prepared to wait to see what consequences, if any, flow from it. It's a matter for yourself.

1. There is no doubt that a miscarriage of justice may be occasioned by conduct engaged in at a trial by a prosecutor that has the effect of reversing the onus of proof. For example, in Wood v The Queen,[42] it was held that several questions posed by the prosecutor in his closing address for the jury to answer in deciding how to resolve the case, reversed the onus of proof. When considered in combination with other conduct engaged in by the prosecutor at that trial, the New South Wales Court of Criminal Appeal held that there had been a miscarriage of justice.
2. In Palmer v The Queen,[43] it was held that a cross‑examination of an accused about whether a complainant might have had a motive to lie impermissibly reversed the onus of proof. In their joint reasons, Brennan CJ, Gaudron and Gummow JJ doubted whether general directions about the issues the jury were required to determine, and about the onus and standard of proof of guilt, were capable of neutralising the prejudicial effect of the cross‑examination.[44]
3. In my view, neither the prosecutor's cross‑examination, nor the submissions that he made based on that cross‑examination, amounted to a reversal of the onus of proof.
4. On its face, the prosecutor's submission to the jury that there were aspects of the appellant's evidence that were 'implausible' suggests that the cross‑examination, and the submissions made on the basis of that cross‑examination, only raised issues relating to the appellant's credibility. However, properly understood, the cross‑examination and the submissions that were made in the prosecutor's closing address invited the jury to conclude that the appellant's failure to deny the accusations that the appellant had murdered the deceased, which the appellant saw were being made on social media, amounted to an implied admission of guilt. In that regard, the prosecutor invited the jury to consider whether the appellant's conduct after he was 'accused of murder all over social media' was 'consistent with the conduct of an innocent man', or whether it was 'conduct that is more consistent with the conduct of a man who knows what he's done and is fatalistically prepared to wait to see what consequences, if any, flow from it'.
5. It is well established that an accused's conduct (including silence) in response to an out‑of‑court allegation of criminal conduct made in the accused's presence by a person speaking on even terms may be evidence of an implied admission of guilt. For example, in Woon v The Queen,[45] Windeyer J made the following observations:[46]

A question asked of a person accused or suspected of a crime, or a statement made in his presence, is admissible if he is invited to, or might reasonably be expected to, respond in some way indicative of denial or of acceptance. It is not that what is said to the accused can of itself be evidence against him. But his response or reaction may be; and that is why what is said to him is admitted. His words, silence or conduct may amount to an admission of the truth of what was said. This is subject to the qualification that no inference adverse to a man can be drawn from his refusal to answer questions which he has been expressly told he is not bound to answer or from his silence after he has been told he need not speak at all.

1. The prosecutor's cross‑examination, and his closing submissions based on that cross‑examination, did not suggest that the appellant bore any onus of proof. There was no suggestion that the appellant was under any obligation to prove his innocence. On the contrary, in discharging its onus of proving the appellant's guilt, the prosecution relied on what the appellant did, or did not do, after he became aware via social media that he was being accused of murdering the deceased as evidence that was directly relevant to his guilt.
2. Whether directions are required to be given to a jury, including directions necessary to avoid the risk of a miscarriage of justice that may attend upon evidence of silence relied on as an admission of guilt, will depend on the facts and circumstances of each case.[47] However, at the hearing of the appeal, the appellant's counsel said that he did not take issue with any of the trial judge's directions about this aspect of the cross‑examination, or the prosecutor's closing address.[48]
3. Before moving on to deal with the second issue raised by the ground of appeal, it is necessary to say something about the fact that in both the prosecutor's cross‑examination of the appellant and his closing address, the prosecutor also invited the jury to take into account the fact that the appellant did not speak to police to try to clear up what were, on the appellant's version of events, false allegations that he had murdered the deceased.
4. It is unfortunate that the prosecutor decided to embark on this line of cross‑examination. Questions put to an accused person in cross‑examination that imply that a failure to voluntarily surrender themselves to police amounts to an implied admission or evidence of consciousness of guilt are likely to be fraught with danger. Quite apart from the fact that it is highly questionable whether any inference of guilt may be safely drawn from a person's failure to hand themselves in to police, as this case very clearly demonstrates, there is a real risk that unintended prejudice may be occasioned.
5. In response to the prosecutor's questioning about whether he had gone to see the police to 'clear this up',[49] the appellant gave evidence that the police were already looking for him for 'another incident anyways from when I was a juvenile'.[50] This information would not otherwise have been before the jury.
6. It is also regrettable that despite the appellant's evidence about why he had not handed himself in to police, and the obvious risk of prejudice, the prosecutor again reminded the jury that the appellant had not tried to 'clear it up with police' in his closing address.[51]
7. However, the trial judge gave the jury several directions about the appellant's evidence about why he had not gone to the police after he learnt that he was being accused of murder.
8. Firstly, the trial judge told the jury that they were not to draw any adverse inferences about the appellant because the police were looking for him in relation to another incident. The trial judge instructed the jury that they must not reason that the appellant was the type of person who might commit a serious offence which involved killing another human being just because the police were looking for him.
9. Secondly, the trial judge directed the jury that the State did not rely on the fact that the appellant had not gone to the police as evidence that he was guilty of the offence of murder or manslaughter. The effect of this direction was to limit the jury's consideration of whether the appellant's conduct after seeing social media posts in which he was being accused of murdering the deceased amounted to an implied admission to his failure to directly respond to those posts.

Second issue: submission that appellant had interest in the outcome of the trial

1. The second issue raised by the ground of appeal concerns the following submission made by the prosecutor in his closing address:[52]

The only witness who says the stabber was someone other than [the appellant] is [the appellant] himself. And not to be flippant but he would say that, wouldn't he? One view you may take is that someone's lying here.

1. There is no dispute that this submission should not have been made. When the trial judge raised concerns with counsel about the potential for the submission to unfairly impact on the fairness of the trial, the prosecutor immediately accepted that his comment did not assist the jury. Later, during a break in the trial judge's directions to the jury, the prosecutor candidly and appropriately apologised for having made the submission and said that he realised that he had made a mistake.
2. The submission that 'he would say that, wouldn't he?', was at least capable of being understood by the jury as an invitation to reject the appellant's evidence that he did not stab the deceased because he had an interest in the outcome of the proceedings.
3. It is well established that trial judges should not give directions that invite juries to test the veracity of an accused's evidence by reference to any interest they may have in the outcome of a criminal trial. In Hargraves v The Queen,[53] the plurality referred to Robinson v The Queen,[54] and said that:[55]

Inviting a jury to test the evidence given by an accused according to the interest that the accused has in the outcome of the trial, or suggesting that the accused's evidence should be scrutinised more carefully than the evidence of other witnesses, deflects the jury from recognising and applying the requisite onus and standard of proof. It is for the prosecution to prove its case, not for the accused to establish any contrary proposition. The instructions which a trial judge gives to a jury must not, whether by way of legal direction or judicial comment on the facts, deflect the jury from its fundamental task of deciding whether the prosecution has proved the elements of the charged offence beyond reasonable doubt.

1. It is axiomatic that a prosecutor should also not make any submission to a jury that suggests that an accused's interest in the outcome of a trial is relevant to its assessment of any evidence given by that accused. Although such a submission will not always be productive of a miscarriage of justice, as was observed by Basten JA in Curran v The Queen,[56] once such a submission is made,

it places the trial judge in a difficult position. If the remark is allowed to pass without comment, the jury may place inappropriate weight on that factor; they may even consider that it has been condoned by the silence of the trial judge. On the other hand, in seeking to remove an inappropriate suggestion, there is a risk that the judge will reinforce the prejudice. In the present case, both counsel and the judge were alert to these problems.[57]

1. Although counsel for the appellant at trial did not raise any objection to the prosecutor's submission, the trial judge did raise the issue with the prosecutor immediately after the appellant's counsel completed his closing address. The trial judge indicated that he intended to give the jury a direction prohibiting them from engaging in a process of reasoning that the appellant's evidence should be rejected simply because the appellant had an interest in the outcome of the trial. Neither counsel raised any objection to the trial judge's proposed course of action or made a submission that any further or different directions were required.
2. In his directions to the jury, the trial judge gave the jury what has come to be known as a Liberato direction.[58] He then instructed the jury in the following terms:[59]

You must not reason that [the appellant] should be disbelieved and his evidence rejected by you simply because he has an interest in the outcome of this trial in being found not guilty. You must not assess his evidence by saying, 'Well, he would lie, wouldn't he?' or words to that effect, because of the seriousness of the charge which is made against him.

To reason that way would be to put the onus on [the appellant] to prove his innocence and to relieve the State of the onus that it carries at all times to prove beyond a reasonable doubt that [the appellant] is guilty of the charge alleged against him or the alternative offence of manslaughter. So to reason that way would be contrary to the fundamental principles and the presumption of innocence on which I have directed you.

You assess [the appellant's] evidence in the same way as you assess the evidence given by all of the witnesses, by reference to matters such as demeanour, consistency, whether what he said was probable according to other evidence that you've accepted, your common sense and experience.

1. Unsurprisingly, the appellant's counsel did not object to this direction or make any submissions that a further or different direction was required. The trial judge's directions plainly removed any risk that the jury may have reasoned in the manner contended for in the prosecutor's submission. Those directions made it abundantly clear that it was not open to the jury to assess the appellant's evidence by reference to the question of whether he had an interest in the outcome of the trial. The trial judge also carefully avoided reinforcing any prejudice to the appellant by making express reference to the substance of what the prosecutor had submitted, without emphasising the source of that submission.
2. When considered in light of the trial judge's directions, the prosecutor's submissions did not give rise to a miscarriage of justice. On the assumption that the prosecutor's submission may properly be regarded as an irregularity in the appellant's trial, the submission could not realistically have affected the verdict of guilty having regard to the trial judge's directions to which I have referred.[60]
3. Ground 2 is without merit, and it must therefore be dismissed.

1. By this ground, the appellant contends that evidence given by Ms Connal, Mr Gorman, Mr Britto, and Mr Bainbridge that they recognised or identified the appellant was inadmissible.[61] The appellant does not complain about the directions the trial judge gave about the evidence elicited from those witnesses. The sole focus of his complaint concerns the admissibility of that evidence.
2. The appellant did not raise any objections at the trial to any of the evidence that he now contends was inadmissible. Accordingly, it is incumbent on the appellant to demonstrate that a miscarriage of justice was occasioned.[62]
3. To establish that a miscarriage of justice was occasioned, it is necessary for the appellant to show that there was an error or irregularity because inadmissible evidence was adduced at his trial, which was 'prejudicial in the sense that there was a "real chance" that it affected the jury's verdict ... or "realistically [could] have affected the verdict of guilt" ... or "had the capacity for practical injustice" or was "capable of affecting the result of the trial"'.[63] In that context, the appellant must also demonstrate that, objectively, there was no rational and reasonable tactical basis for counsel's decision not to object to the evidence.[64]
4. Before dealing with the appellant's submissions, it is necessary to make some preliminary observations about some of the relevant principles that apply in relation to the admissibility of identification and recognition evidence.
5. In general, and subject to established exceptions, evidence is admissible if it is relevant to the issues before a court. In that regard, Gleeson CJ made the following observations in the oft‑cited decision of Goldsmith v Sandilands:[65]

The function of evidence is to advance, or cut down, the case of a party in accordance with the rules of statute or common law that determine the nature of the information a court will receive. The primary rule of evidence is that a court will receive, and will only receive, evidence that is relevant to the issues as defined by the pleadings. Evidence is relevant if it could rationally affect, directly or indirectly, the assessment of the probability of the existence of a fact in issue in the proceeding. The general rule that relevant evidence will be received is qualified by other rules based upon considerations of justice, or practicality. (citations omitted)

1. Evidence that a witness made a relevant visual identification of a person, including evidence that a witness recognised someone previously known to them,[66] is generally received subject only to the exercise of a discretion to exclude evidence where the prejudicial effect of such evidence outweighs its probative value.[67] For the purposes of this appeal it is unnecessary to consider whether evidence of identification or recognition might also be excluded on the basis of a separate 'general unfairness discretion'.[68]
2. When identification evidence represents any significant part of the prosecution case, a trial judge is required to warn the jury about the dangers of convicting on such evidence where its reliability is disputed.[69] A similar warning may be required when recognition evidence is relied on, having regard to the particular circumstances of each case.[70]
3. The appellant contends that some of the evidence adduced at his trial was irrelevant. Relying on the reasoning of the plurality in Smith v The Queen,[71] the appellant argues that identifications made by various witnesses from video footage recorded on mobile telephones were not capable of rationally affecting, directly or indirectly, the jury's assessment of the probability that the appellant stabbed the deceased.
4. However, the appellant relies on a more general contention that certain evidence adduced at his trial was inadmissible. In that context, it is incumbent upon the appellant to point to a rule or rules that required the exclusion of that evidence.
5. Alternatively, the appellant must establish that the evidence should have been excluded in the exercise of the trial judge's discretion to exclude the evidence because its prejudicial effect outweighed its probative value.
6. The common law power to exclude evidence on the basis that its prejudicial effect outweighs its probative value has for a long time been regarded as being discretionary in nature. Indeed, the power to exclude evidence on this basis is often referred to as the 'Christie discretion', being a reference to the case of R v Christie.[72]
7. As this court explained in Le-Ta v The State of Western Australia:[73]

A trial judge's discretion to exclude admissible evidence where the prejudicial effect of the evidence outweighs its probative value is well‑established. In this context, it is important to understand what is meant by 'prejudice'. Evidence is not prejudicial simply because it tends to prove the guilt of the accused. Prejudice arises from the risk of improper use of the evidence. Evidence will be prejudicial only when the jury are likely to give the evidence more weight than it deserves or when the nature or content of the evidence may inflame the jury or divert the jurors from their task. As Nettle J has explained [in Police v Dunstall [2015] HCA 26; (2015) 256 CLR 403 [62]], by this discretion, evidence is excluded where and because its capacity to lead a jury to reason correctly to a verdict of guilt is outweighed by its capacity to lead the jury to reason incorrectly to a conclusion of guilt. (citations omitted)

1. In this case, none of the evidence that is now said to have been inadmissible was objected to at the trial, and the trial judge was not asked to exercise any power or discretion to exclude evidence on the basis that its prejudicial effect outweighs its probative value. In those circumstances there is a question, not addressed by the parties, about the standard of appellate review that must be applied.
2. There are authorities that suggest that where it is argued on appeal that evidence that was admitted at trial without objection was inadmissible on the basis that its prejudicial effect outweighs its probative value, the court must be persuaded that there was a miscarriage of justice because the only appropriate exercise of the Christie discretion would have been to exclude the evidence.[74] However, since the decision of the High Court in Moore (a pseudonym) v The King,[75] this may not be the correct approach.
3. In Moore, the High Court considered whether, in hearing an interlocutory appeal concerning a trial judge's refusal to exclude evidence under s 137 of the Evidence Act 2008 (Vic), the Court of Appeal of the Supreme Court of Victoria was required to apply the 'correctness standard'.[76] As the High Court explained, under the correctness standard, an appellate court determines for itself the correct outcome while making due allowance for such advantages as may have been enjoyed by the judge who conducted the trial or hearing.[77]
4. Section 137 of the Victorian Evidence Act provides that '[i]n a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the accused'. In Moore, it was held that the application of s 137 requires a court to make three evaluative decisions: an assessment of the weight of the probative value of the evidence, an assessment of the extent of any danger of unfair prejudice, and then a comparison of one with the other. It was also held that as there can only be one correct answer as a result of this process of evaluation, the relevant standard to be applied by an appellate court in considering an appeal from a ruling as to whether or not evidence should be excluded under s 137 is the correctness standard.
5. As the test to be applied under s 137 of the Victorian Evidence Act is, in all relevant respects, identical to the way the Christie discretion falls to be exercised, it might reasonably be concluded that the correctness standard must also be applied in appeals against rulings as to whether or not evidence should have been excluded under that discretion.
6. In circumstances in which the parties have not made any submissions about the correct approach to be taken where it is said on appeal that evidence that was not objected to at trial was inadmissible because its prejudicial effect outweighed its probative value, it would be inappropriate for this court to finally determine that issue. However, I propose to adopt the correctness standard in deciding whether there was a miscarriage of justice because evidence was admitted at the appellant's trial, the prejudicial effect of which outweighed its probative value. The correctness standard is more favourable to the appellant because the appellant is not required to establish that the only appropriate exercise of the Christie discretion would have been to exclude the evidence.
7. In RKT v The State of Western Australia,[78] Mazza JA (with whom Buss P and Newnes JA agreed) said:[79]

Where evidence is admitted without objection, it will be difficult for an appellant to establish a miscarriage of justice. This is because, generally, an appellant is bound by the way defence counsel conducted the trial.

At least two issues arise when it is alleged that evidence adduced without objection gave rise to a miscarriage of justice. First, was the evidence technically admissible? Second, if it was inadmissible, was the failure to object for rational forensic reasons. When addressing this second question, this court is concerned with whether counsel's decision was objectively capable of explanation on that basis. Moreover, there will be no miscarriage of justice unless the inadmissible evidence occasioned material prejudice to the appellant. (citations and footnotes omitted)

1. Before dealing with this ground of appeal it is necessary to note that the fact that the probative value of identification or recognition evidence, standing alone, might be low does not require its exclusion unless that value is outweighed by the danger of unfair prejudice.[80] Further, in making an assessment about whether the evidence complained about was inadmissible because its prejudicial effect outweighed its probative value, it is relevant to consider the directions that were given to the jury. Whether a miscarriage of justice was actually occasioned will be informed by considering whether the trial judge's directions adequately mitigated any identified prejudicial effect of the evidence.[81]

1. The appellant challenges the admissibility of Ms Connal's evidence that she recognised the appellant as one of the group of boys who 'mobbed' the deceased when she was with a friend watching footage of the relevant incident she had recorded on her mobile telephone. Further, the appellant says that Ms Connal's evidence that she identified the appellant from a digiboard while participating in an identification procedure on 15 December 2020 was inadmissible.
2. The appellant also argues that Ms Connal's identification of the appellant from the footage recorded on her mobile telephone, which occurred during her evidence at the trial, was inadmissible because it was irrelevant, having regard to the reasoning in Smith. I will deal with the appellant's other contentions before dealing with this argument.

1. The appellant relies on the fact that Ms Connal gave evidence that she only realised that the appellant was involved when she was with a friend, looking back at the recording she had made on her mobile telephone of the assault on the deceased. In particular, the appellant challenges the following evidence:[82]

Okay. All right. Well, you've mentioned the name Kingston Coomer. I'm going to ask you some questions about him. Before this party had you known him? Did you know Kingston Coomer?---No.

Okay. Did you know of him?---I've heard of him, yeah.

And in what circumstance had you heard of him?---Just people talking about him. Nothing - nothing, like, specific. Just, like, about him.

Okay. So when you say - you said Kingston Coomer was one of these people who was mobbing [the deceased]. So when you looked at him, how were you able to look at him and say that's Kingston Coomer? How did you know him?---Well, I had recorded on my phone and then after, when I was looking back at the recording, I realised.

What did you realise?---That Kingston Coomer was involved.

Okay. And - I'm just trying to get a sense of how it was you recognised who Kingston Coomer is. I mean, before this party had you seen him? Even if it wasn't face to face, had you seen him anywhere else?---Well, I was with my friend and she kind of knew a little bit of him and we recognised that it was him.

Okay. What about social media? Had you ever seen him on that?---No.

So it was really just from - from being around and - and - - -?---Yeah.‑ ‑ ‑ being around people who knew him. Is that fair to say?---Yes.

Okay. And did you have any dealings - anything to do with him at this party on 12 December 2020?---No. (emphasis added)

1. The appellant contends that this evidence was inadmissible because there is a real prospect that it was contaminated, or that it had been influenced, by what Ms Connal's friend had said to her, in circumstances in which the friend was never identified and did not give evidence. At the hearing of the appeal, it was also submitted that Ms Connal had given 'hearsay‑like evidence', because her identification was 'tied up' with what her friend had told her when they were looking at the video.[83]
2. Although Ms Connal's evidence was not very clear, it was open to the jury to regard her evidence that her friend 'kind of knew a little bit of him and ... recognised that it was him' as evidence that her friend had made an out‑of‑court statement to her at the time they were watching the mobile telephone footage together, or that it was evidence of the conduct of Ms Connal's friend that contained an implied assertion[84] that her friend recognised the appellant in that footage. On either basis, if the evidence was adduced for the purposes of establishing the truth of the assertion that Ms Connal's friend recognised the appellant in the mobile telephone footage, it was inadmissible hearsay.
3. However, the prosecutor did not rely on any out‑of‑court assertions made by Ms Connal's friend that she recognised the appellant in the mobile telephone footage as evidence of the truth of those assertions. On the contrary, the prosecutor told the jury that the fact that someone told Ms Connal that they recognised the appellant in the footage 'may be relevant to the weight to be attached to [Ms Connal's] identification of the accused from the footage'.[85] (emphasis added) In other words, the prosecutor properly conceded that the involvement of Ms Connal's friend had the capacity to reduce the weight to be attributed to Ms Connal's identification of the appellant from the footage.
4. Further, the trial judge instructed the jury that they would need to take into account the fact that Ms Connal watched the mobile telephone footage with a friend who 'knew a bit about' the appellant in 'considering the reliability of Ms Connal's evidence that her friend recognised [the appellant]'.[86]
5. Accordingly, no miscarriage of justice was occasioned. There was no perceptible risk that the jury may have used any out‑of‑court assertions made by Ms Connal's friend as evidence that she had identified the appellant.
6. In any event, it is open to conclude that the appellant's counsel did not object to this part of Ms Connal's evidence for a rational, tactical reason. As the summary of the evidence that appears earlier in these reasons shows, Ms Connal was one of two witnesses who positively identified a photograph of the appellant from a digiboard during an identification procedure. It was of critical importance for the appellant to undermine this evidence.
7. Both the fact that Ms Connal had viewed the mobile telephone footage before she positively identified the appellant's photograph from a digiboard, and the possibility that her identification may have been affected by suggestibility because of something a friend had said to her when they watched that footage together, were factors that were obviously capable of affecting the reliability of her identification from the digiboard. It was objectively rational and reasonable for the appellant's experienced trial counsel not to object to Ms Connal's evidence about the interaction she said she had with her friend while watching the footage because it was capable of reducing the weight to be attached to Ms Connal's identification of the appellant from the digiboard.
8. The potential significance of Ms Connal's evidence about watching the footage with her friend to the jury's assessment of the reliability of her identification of the appellant is reflected in the trial judge's directions:[87]

It's important that you understand that the digiboard identification was made after Ms Connal had viewed the film that she had taken with her mobile phone, and after the discussion that she had with her friend about the film.

1. A short while later the trial judge reiterated this direction in the context of reminding the jury of some of the submissions made by counsel in their closing addresses:[88]

You should understand however, that it may be that a witness will have a preconceived understanding of the identity of a person who is involved in an incident and forms some understanding by a mental process, in which physical identification forms no part. For example, you'll need to consider with Ms Connal, whether or not her identification was something that was suggested to her by her friend, rather than an actual recognition of [the appellant] made independently.

1. Further, in the context of giving the jury a Domican warning[89] about the dangers of relying on identification and recognition evidence based on photographs, and the need to exercise special caution, the trial judge gave the following directions:[90]

Photograph identification evidence is also capable of being influenced by expectations. You should bear in mind the possibility of a witness being influenced by others perhaps subconsciously, being influenced by the belief that the offender must necessarily be in one of the photographs that he or she is asked to examine.

So there is a danger with photograph identification that somebody may expect to see an accused person in the photographs that are presented, that a person might be influenced by things that they have been told by others, or that they may make a false identification simply because of the nature of a photograph, its two-dimensional character, the fact that only the face is depicted and so on. They're all matters that you need to take into account when you consider the digiboard identifications made by Mr Britto and Ms Connal. (emphasis added)

1. In my view, the admission of Ms Connal's evidence about her interaction with her friend while watching the footage of the attack on the deceased she had recorded on her mobile telephone did not occasion a miscarriage of justice.

1. The appellant also challenges Ms Connal's evidence that she identified the appellant's photograph in a digiboard during an identification procedure. The appellant does not suggest that Ms Connal's evidence in this respect was irrelevant. Further, the appellant does not identify any rule of evidence that required that her evidence be excluded. In his written submissions, the appellant simply says that Ms Connal's evidence should have been excluded because it was contaminated by her prior viewing of the mobile telephone footage and by what her friend had said to her at that time.
2. It seems, therefore, that the appellant contends that although the trial judge was not asked to exclude Ms Connal's evidence on the basis that its prejudicial effect outweighed its probative value, there was a miscarriage of justice.
3. It is relevant to recall that Ms Connal's evidence was that she was told the name of the appellant by a friend who viewed the footage, but that she (Ms Connal) did not view any online images of the appellant before undertaking the digiboard procedure. In the digiboard procedure Ms Connal was invited to identify the person who was involved in the matter under investigation. She was not told the names of any of the people whose images were on the digiboard and the board did not include any names. In these circumstances, it is not readily apparent how being given the name of the appellant could have affected Ms Connal's ability to identify his image on the digiboard.
4. I am far from persuaded that Ms Connal's evidence was inadmissible. There was no unfair prejudice to the appellant simply because Ms Connal had viewed footage of the attack with her friend before making a positive identification of the appellant from a digiboard. In any event, to the extent that there was any prejudice to the appellant, there was no miscarriage of justice because the trial judge's directions, which I have reproduced, removed any risk of unfair prejudice.

Relevance of Ms Connal's evidence relating to mobile telephone footage

1. During her evidence‑in‑chief, Ms Connal was shown a 'very brief part' of 'file 2A', which comprised the footage of the attack on the deceased that she recorded on her mobile telephone.[91]
2. After Ms Connal was shown the footage, her attention was directed to a person shown in the footage who was wearing a baseball cap and who the prosecutor suggested was making stabbing motions towards a person on the ground.[92]
3. Ms Connal gave evidence that this was the appellant.
4. Relying on what was held by Gleeson CJ, Gaudron, Gummow and Hayne JJ in Smith,[93] the appellant argues that this evidence was irrelevant and therefore inadmissible. In order to deal with this argument, it is necessary to say something about what the court held in Smith.
5. The appellant in Smith was convicted after trial by jury of robbery. It was alleged that the appellant, in company with others, robbed two bank officers and stole a sum of money. The prosecution case was that the appellant's role in the robbery was to act as a lookout while his co‑offenders took the money.
6. Security cameras in the bank took photographs of the robbery. The prosecution alleged that the appellant was the person shown in the photographs, standing near the back of an automatic teller machine. A fact in issue at the trial was whether the prosecution had proved, beyond reasonable doubt, that the appellant was that person. The only evidence adduced at the appellant's trial relating to that fact in issue was evidence given by two police officers that they both had previous dealings with the appellant and that they recognised the person depicted in the bank photographs as the accused.
7. The plurality noted that the two police officers were in no better position than the members of the jury to make a comparison between the person depicted in the photographs and the appellant who was present in court. In that regard, it was said that 'the data available to the jury for its resolution was no different in any significant way from the data upon which the police officers based their asserted conclusion'.[94] It was on this basis that the plurality concluded:[95]

Because the witness's assertion of identity was founded on material no different from the material available to the jury from its own observation, the witness's assertion that he recognised the appellant is not evidence that could rationally affect the assessment by the jury of the question we have identified. The fact that someone else has reached a conclusion about the identity of the accused and the person in the picture does not provide any logical basis for affecting the jury's assessment of the probability of the existence of that fact when the conclusion is based only on material that is not different in any substantial way from what is available to the jury. The process of reasoning from one fact (the depiction of a man in the security photographs) taken with another fact (the observed appearance of the accused) to the conclusion (that one is the depiction of the other) is neither assisted, nor hindered, by knowing that some other person has, or has not, arrived at that conclusion. Indeed, if the assessment of probability is affected by that knowledge, it is not by any process of reasoning, but by the decision-maker permitting substitution of the view of another, for the decision-maker's own conclusion.

In this case the evidence of the police was irrelevant and should not have been received. No question of admissibility had to be considered.

1. Ms Connal's evidence was very different to the evidence given by the two police officers in Smith. Ms Connal did not purport to carry out a comparison between the appellant and the mobile telephone footage she was shown when giving evidence. More specifically, she did not give evidence that the person depicted in the mobile telephone footage, who was wearing a baseball cap backwards and who appeared to be doing stabbing motions towards the deceased, who was on the ground, was the accused person in court.
2. There was no dispute that Ms Connal was an eyewitness to the fatal stabbing of the deceased. After all, she was one of the people that recorded the attack on the deceased on her mobile telephone. However, Ms Connal's evidence was that she only saw that 'a few boys went up to [the deceased] and mobbed him'.[96] She also gave evidence that one of those boys was 'Kingston Coomer'.[97]
3. Ms Connal said that she did not know the appellant and that she had only ever 'heard of him'. It seems likely that the name 'Kingston Coomer' was first suggested to her by her friend when they watched the footage that Ms Connal had recorded on her mobile telephone together.
4. So, while Ms Connal said in her evidence that she saw that 'Kingston Coomer' was one of the boys who 'mobbed' the deceased, she was not purporting to assert that the appellant, who was in court, was that person.
5. As has already been noted, Ms Connal participated in an identification procedure on 15 December 2020, three days after the deceased was fatally stabbed. During that procedure, she was shown a digiboard and she selected an image of the appellant. When Ms Connal was shown the digiboard in her evidence‑in‑chief, and she was asked to point out the image she had previously selected, she said that the person whose image she had selected was 'Kingston Coomer'.
6. Accordingly, the relevance of Ms Connal's evidence that 'Kingston Coomer' was the person depicted in the mobile telephone footage wearing a baseball cap backwards and who appeared to be doing stabbing motions towards the deceased was that it provided the necessary link to her evidence that 'Kingston Coomer' was one of the boys who 'mobbed' the deceased, and to her digiboard identification of the appellant.
7. The overall effect of Ms Connal's evidence that the person whose image she had selected in the digiboard was the same person she had witnessed 'mobbing' the deceased, and that he was the same person depicted in the footage that appeared to be stabbing the deceased.
8. If the jury accepted Ms Connal's evidence that the relevant person depicted in the footage, who was wearing a baseball cap on backwards who appeared to be doing stabbing motions towards the deceased who was on the ground, was 'Kingston Coomer', it was capable of rationally affecting (directly or indirectly) the jury's assessment of the probability that the appellant was the person who stabbed the deceased.
9. The appellant's contentions that Ms Connal's evidence occasioned a miscarriage of justice must be rejected.

1. The appellant submits that Mr Gorman's evidence that he recognised the appellant as the person who was stabbing the deceased because he had previously seen images of him on Instagram was inadmissible and that it therefore occasioned a miscarriage of justice. The appellant submits that the evidence was inadmissible because the images Mr Gorman said that he saw on Instagram were not produced in evidence, with the result that there was no proper foundation for Mr Gorman's evidence that he recognised the appellant. The appellant also argues that the jury were deprived of the ability to examine the relevant Instagram posts for themselves, presumably for the purposes of assessing the proper weight to be attached to Mr Gorman's evidence.
2. The appellant also submits that evidence given by Mr Gorman, upon being shown the mobile telephone footage recorded in 'file 2A' that the person he could see in that footage 'with a greenish-coloured top and a baseball cap back to front ... [who] appears to have a knife in his hand, making repeated stabbing motions' was 'Kingston Coomer', was irrelevant having regard to the reasoning in Smith.

Mr Gorman's recognition of the appellant from Instagram

1. The appellant does not suggest that this aspect of Mr Gorman's evidence was irrelevant. He also does not submit that the evidence was inadmissible because of the operation of any rule of exclusion. Rather, he appears to contend that Mr Gorman's evidence that he recognised the appellant as the person who stabbed the deceased was inadmissible because its prejudicial effect outweighed its probative value.
2. It was open to the jury to attach less weight to Mr Gorman's evidence that he recognised the appellant when he saw him stabbing the deceased because his recognition of the appellant was based only on what he had seen on Instagram. It was also open to the jury to take into account, in assessing Mr Gorman's evidence, that the images he had seen on Instagram were not in evidence. However, this did not mean that the failure to exercise the discretion to exclude evidence on the basis that any impermissible prejudice outweighed its probative value resulted in a miscarriage of justice.
3. Although the images to which Mr Gorman referred were not in evidence, it was never put to him that those images did not exist or that there were no images of the appellant on Instagram. Instead, the cross‑examination proceeded on the tacit acceptance that those images existed. The jury were entitled to consider that in those circumstances, and given the fact that the appellant himself gave evidence that he had access to social media (including Instagram and Facebook) at the relevant time,[98] that it was unlikely that the images seen by Mr Gorman on Instagram were of someone other than the appellant.
4. In R v Hards,[99] evidence was given by an eyewitness to an assault who had not met the accused in person, that he recognised the accused from images of a person on Instagram and Facebook said to be the accused. The witness said that he had also previously seen the accused at a birthday party. The accused unsuccessfully argued at trial that the evidence should be excluded in the exercise of the trial judge's discretion, and was later unable to convince the South Australian Court of Criminal Appeal that the trial judge erred in the exercise of that discretion.
5. It was held by Bampton J, with whom Kourakis CJ and Stanley J agreed, that the trial judge did not err in the exercise of the discretion. Although it was said that while it may have been of assistance for the prosecution to tender the photographs from the relevant social media platform on which the witnesses' recognition was based, the evidence was admissible.[100] In reaching that conclusion, Bampton J said that there was little difference between the evidence of the eyewitness that he saw the accused on a social media site some time ago and his evidence that he also saw him at the party, and that any differences between the two situations were not so stark that it was logical that one should have been excluded and the other not.[101]
6. In my view, the reasoning employed in Hards is equally applicable to the evidence given by Mr Gorman.
7. In this case, the trial judge also gave the jury several specific directions about Mr Gorman's evidence, including directions that brought to the jury's attention the fact that he was never asked to describe the person he said was the appellant as he appeared on Instagram. The trial judge also reminded the jury that there was no other evidence about the images Mr Gorman had seen on Instagram, and that they had not actually been shown those images so that they could decide for themselves the extent to which they were capable of enabling Mr Gorman to recognise the appellant during the assault on the deceased.
8. Mr Gorman's evidence that he recognised the appellant did not give rise to any risk of unfair prejudice which outweighed its probative value.
9. Even if it could be said that Mr Gorman's evidence was arguably technically inadmissible, it is readily understandable why the appellant's counsel would not have objected to Mr Gorman's evidence and why he would not have insisted that the State produce the relevant images as a precondition to the admission of his evidence.
10. The fact that Mr Gorman was only able to recognise the appellant based on what he had seen on Instagram left it open to the appellant's counsel to argue that Mr Gorman's purported recognition of the appellant was unreliable. As the appellant's counsel put it in the cross‑examination of Mr Gorman: 'all you got was a photo; right?...That's all you knew about - that's all you knew of Coomer?'[102]
11. Further, it would have been an objectively reasonable and rational decision for counsel not to insist that the images Mr Gorman had previously seen on Instagram be produced. There was no way of knowing whether those images would have assisted or hindered the appellant's defence. There was also a risk that the images may have demonstrated that the appellant had a scar on his left cheek in those images as well as in the photograph that was taken of him when he was arrested.
12. It would have been an entirely legitimate tactical decision for defence counsel to decide not to request disclosure of those images, and to not insist on their tender, leaving the way clear for him to make submissions about the impact the absence of those images should have on the jury's assessment of Mr Gorman's evidence in his closing address.

Relevance of Mr Gorman's evidence relating to mobile telephone footage

1. During his evidence‑in‑chief, Mr Gorman was shown the mobile telephone footage that was referred to during the trial as 'file 2A'. Relevantly, Mr Gorman gave the following evidence:[103]

Now, look, it's a matter for the jury what they see in this - in that video, but I suggest it shows to the right of the person in the yellow shirt there's a person with a greenish-coloured top and a baseball cap back to front. He appears to have a knife in his hand, making repeated stabbing motions. Is that what you saw in that video?---Yeah.

Who is that man?---Kingston Coomer.

1. As was the case in relation to evidence given by Ms Connal, the appellant submits that this evidence was irrelevant and therefore inadmissible, having regard to the principles in Smith.
2. The appellant's submission that this aspect of Mr Gorman's evidence was irrelevant cannot be accepted.
3. Unlike in Smith, Mr Gorman did not purport to make a comparison between any person he could see on the mobile telephone footage referred to as 'file 2A' and the appellant.
4. According to Mr Gorman, he had never met the appellant. His evidence was that he saw the deceased being stabbed with a knife by someone he knew as 'Kingston Coomer', based on images and 'tags' he had previously seen on Instagram. He did, however, give evidence that the person he had come to know as 'Kingston Coomer' had a scar on his left cheek.
5. Mr Gorman did not record the mobile telephone footage referred to as 'file 2A'. As has already been noted, that footage was recorded by Ms Connal. However, Mr Gorman's evidence that the person depicted in that footage, who he could see had a knife in his hand and was making stabbing motions, was relevant in at least two ways.
6. Firstly, Mr Gorman's evidence was relevant because it tended to establish that he had seen the same incident that was seen (and recorded) by Ms Connal. It will be recalled that Ms Connal positively identified the appellant as the person depicted in the footage described as 'file 2A', but she did not actually see the stabbing take place. Mr Gorman's evidence was that he actually saw the deceased being stabbed with a knife, independently of the video footage. When taken together, the evidence of both Ms Connal and Mr Gorman supported the State's case that the appellant stabbed the deceased.
7. Secondly, Mr Gorman's evidence was, in effect, that the person he could see in the mobile telephone footage who appeared to have a knife in his hand and who was making stabbing motions, was the same person he had seen referred to on Instagram as 'Kingston Coomer', and who he knew to have a scar on his left cheek. Accordingly, it was circumstantial evidence from which it was open to the jury to infer that the appellant was depicted in the mobile telephone footage.
8. The appellant's contentions that Mr Gorman's evidence occasioned a miscarriage of justice cannot succeed.

1. It is very difficult to understand why the appellant contends that Mr Britto's evidence was inadmissible.
2. In his written submissions, the appellant refers to Mr Britto's evidence that he received a video of the attack on the deceased from Ms Clarke after he participated in an identification procedure, during which he chose a photograph of the appellant. Reference is also made to the fact that Mr Britto viewed and shared photographs after the assault. However, the appellant does not explain how either of those two matters may have rendered Mr Britto's identification of the appellant from a digiboard inadmissible, other than to say that the photographs were not tendered in evidence.
3. The appellant's submissions are without merit. The premise of the appellant's argument has no foundation in the evidence. There was no evidence that Mr Britto's identification of the appellant during the identification procedure by selecting a photograph of the appellant on a digiboard had been influenced by anything he had seen before that procedure took place, including any photographs and videos.

1. The appellant contends that Mr Bainbridge's identification of the appellant from video clips that were shown to him during his evidence‑in‑chief was irrelevant, relying on the reasoning employed by the plurality in Smith. The appellant also argues that Mr Bainbridge's evidence that he previously identified the appellant from a video clip that was shown to him by police, and his evidence in which he identified the appellant from several video clips shown to him during evidence‑in‑chief, was inadmissible.

Relevance of Mr Bainbridge's evidence relating to mobile telephone footage

1. During his evidence‑in‑chief, Mr Bainbridge was shown several clips of video footage obtained from mobile telephones. However, unlike the evidence given by the police officers in Smith, Mr Bainbridge did not purport to give evidence about any comparison he had carried out between what he could see in the video footage and the appellant.
2. In relation to 'file 2A', Mr Bainbridge gave evidence that the person shown in that clip in a green top with a cream‑coloured baseball cap on backwards, who appeared to have a knife in his hand, was 'Kingston Coomer'.[104] In respect of 'file 3A', Mr Bainbridge also said the person with a green top and what appeared to be a black strap around his body, was 'Kingston Coomer'.[105] In relation to 'file 4A', Mr Bainbridge said that 'Kingston Coomer' was the person that could be seen wearing a baseball cap, engaging in a 'stabbing motion'.[106]
3. Mr Bainbridge was also shown a still photograph taken from 'file 2A', and he once again gave evidence that one of the people depicted in that photograph was 'Kingston Coomer'.[107]
4. In addition to identifying the person he knew as 'Kingston Coomer' from the mobile telephone footage, Mr Bainbridge was asked to identify himself as well as the other people who he had said earlier in his evidence he had driven to the Waikiki party. In that regard, Mr Bainbridge gave evidence that he, his brother Javontay Dunn, Tame Graham and Adam Davis also appeared in several of the video clips.
5. Mr Bainbridge's evidence that the person he knew as 'Kingston Coomer' was depicted in the footage obtained from recordings made using mobile telephones that was played to him while giving evidence was plainly relevant.
6. Mr Bainbridge gave evidence that he drove his brother, Javontay Dunn, to the Waikiki party. He also said that he gave a lift to some of his brother's friends, who he knew as Adam Davis, Tame Graham and Kingston Coomer. He said that he did not know of, and that he had not met, 'Kingston Coomer' before that time. None of Mr Bainbridge's evidence in that regard was challenged in cross‑examination. Further, although the appellant disagreed that Adam Davis was given a lift, he did agree that Mr Bainbridge drove himself, Javontay Dunn and Tame Graham to the party.
7. In that context, Mr Bainbridge's evidence was, in effect, that a person he drove to the party, who he knew as 'Kingston Coomer', was the same person depicted in the various video clips that were shown to him in his evidence‑in‑chief. Further, the effect of his evidence was that the other people he drove to the party were also involved in the attack on the deceased, and that they were also depicted in the video clips.
8. When considered in combination with the appellant's own evidence that he did receive a lift to the party from Mr Bainbridge, and that he was in company with at least some of the people Mr Bainbridge said were in his car, Mr Bainbridge's evidence that he could see 'Kingston Coomer' in the mobile telephone footage was capable of rationally affecting the jury's assessment of the probability of whether the appellant had stabbed the deceased.
9. This should not be understood as a conclusion that this was the only relevance of Mr Bainbridge's evidence that the person he knew as 'Kingston Coomer' was depicted in the footage obtained from recordings made using mobile telephones. However, this conclusion is sufficient to dispose of the appellant's argument.

Other challenges to Mr Bainbridge's evidence about mobile telephone footage

1. Insofar as the appellant challenges the evidence given by Mr Bainbridge about the fact that he had previously identified the appellant from video footage when it was shown to him by police, this contention cannot succeed. It was the appellant's own counsel who introduced this evidence. It was not suggested that counsel's decision to elicit this evidence from Mr Bainbridge was irrational or illogical.
2. The appellant also argues that Mr Bainbridge's evidence that he recognised the appellant in the video clips played to him in court was inadmissible on the basis that it was contaminated because, after the attack on the deceased, Adam Davis told him that '[t]hey all think it's [the appellant] that hit the guy',[108] and because police had already shown Mr Bainbridge a video clip of the incident.
3. Neither of these arguments have any merit. While it was open to the jury to have regard to both of the matters relied on by the appellant in considering whether Mr Bainbridge's evidence had been 'contaminated', the probative value of Mr Bainbridge's evidence that he could identify the appellant from the video clips that were played to him in the presence of the jury was not outweighed by any impermissible prejudice.

1. Ground 3 is without merit and it must be dismissed.

1. By this ground, the appellant argues that a miscarriage of justice was occasioned in circumstances in which the enhanced footage on exhibit 3 was played in open court while the eyewitnesses, Ms Connal, Mr Gorman and Mr Bainbridge, were giving evidence, and 'in the absence of directions', because the footage 'promoted an impression of accuracy and reliability in prior identification evidence that was not warranted'.[109]
2. In his opening address, the prosecutor told the jury that the mobile telephone footage that was tendered at the trial, had been 'enhanced' by police:[110]

And when I say enhancement, what the police technical people have done is they've essentially made it brighter in terms of the lighting, because at the time it was quite dark and the police have enhanced it by lightening it so that it's more easily viewable.

1. Evidence was also adduced from the investigating officer, Detective Sergeant Pitts, without objection, that the footage in exhibit 3 had been enhanced by 'police technical staff'. Detective Pitts explained that the enhancement 'made the footage lighter...it enhanced the - the lighting in the videos'.[111]
2. At the hearing of the appeal, the appellant's counsel confirmed that he did not suggest that any of the footage in exhibit 3 was inadmissible, even in its enhanced form. Instead, counsel contended that the trial judge was required to give directions to the jury to avoid the risk that they might impermissibly conclude that exhibit 3 recorded the true nature of the conditions under which the eyewitnesses were operating when observing relevant events. He also argued that, in the absence of directions from the trial judge, the footage impermissibly bolstered the credibility of the eyewitnesses when it was shown to the witnesses during their evidence.
3. Counsel did not refer to any authority in support of his argument. He was also unable to clearly articulate the directions that he said should have been given when he was asked to do so, other than to submit that the trial judge should have told the jury that they needed to carefully consider the enhanced footage when evaluating the testimony of the eyewitnesses.
4. There is no merit in the appellant's argument.
5. It would have been obvious to the jury that the footage in exhibit 3 had been enhanced, and that the lighting conditions depicted in the footage did not accurately reflect the lighting conditions under which the eyewitnesses had made their observations. The prosecutor told the jury as much in his opening address, and the fact that the lighting had been enhanced was the subject of unchallenged evidence adduced from the investigating police officer.
6. It was also not in issue that it was dark when the attack took place on the deceased. Several witnesses gave evidence about the actual lighting conditions that existed at the time they saw the attack taking place on the deceased. For example, Mr Gorman said that it was dark, although there were streetlights and telephone cameras being used.[112] Mr McAuliffe said that it was dark, but he could see the people who were chasing the deceased. He also said that at the time the deceased was being stabbed the lighting was 'very faint'.[113] Mr Bainbridge said that it was 'pretty dark' where he was assaulting the deceased.[114] Ms Connal gave evidence that it was 'really dark' when she watched the attack on the deceased.[115] Ms Devine said that it was 'pretty dark', although she could still clearly see what was going on.[116]
7. Only three witnesses were shown enhanced footage recorded on exhibit 3 during their evidence: Mr Bainbridge, Ms Connal and Mr Gorman.
8. Mr Bainbridge gave evidence, under cross‑examination, that he had previously identified the appellant from video footage shown to him by police. That video footage must have been in its unenhanced form because Mr Bainbridge explained that it was not as clear as the footage shown to him during his evidence‑in‑chief. Mr Bainbridge said, in his evidence, 'I think they've been enhanced or something'.[117]
9. As has already been discussed, Ms Connal gave evidence that she had previously viewed the original footage on her own telephone. She also gave evidence that she had taken part in an identification procedure in which she had selected the appellant's image from a digiboard.
10. As has been noted, Mr Gorman had previously given evidence that he knew the person who he had seen stabbing the deceased as 'Kingston Coomer', because he had become familiar with him from photographs he had seen tagged on Facebook and on Instagram.
11. In these circumstances, it is impossible to see how exhibit 3 could have affected the jury's assessment of the reliability of the evidence given by any of these three witnesses. Each of their identifications of the appellant were made before they saw the enhanced footage.
12. The appellant's experienced trial counsel did not at any stage suggest that the trial judge should give any directions about the fact that the footage in exhibit 3 had been enhanced. The absence of objection to a judge's directions is not fatal to reliance on an error if it occasioned a miscarriage of justice,[118] but it does tend against a finding that a perceptible risk of a miscarriage of justice was present at the trial.[119]
13. Ground 4A is without merit. Leave to appeal should be refused.

1. The relevant principles that must be applied when dealing with a ground of appeal that contends that a verdict of guilty was unreasonable or cannot be supported having regard to the evidence are well established. Those principles were relevantly summarised in Sturniolo v The State of Western Australia in the following manner:[120]

(1) The appeal court must undertake its own independent assessment of the sufficiency and quality of the evidence. It is not simply a matter of deciding whether, as a matter of law, there was evidence to support the verdict. The appeal court must determine whether, in all the circumstances, it would be dangerous to permit the verdict to stand.

(2) The question for the appeal court is whether, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.

(3) That question requires consideration of whether the jury must, as distinct from might, have entertained a reasonable doubt about the accused's guilt.

(4) In answering that question, the appeal court must pay full regard to the consideration that the jury was entrusted with the primary responsibility of determining guilt or innocence, and to the advantage that the jury had of seeing and hearing the witnesses. The appeal court should not seek to duplicate the function of the jury in its assessment of the credibility of the witnesses where that assessment is dependent on the evaluation of the witnesses in the witness box. The assessment of the weight to be accorded to a witness' evidence by reference to the manner in which it was given by the witness is, and remains, the province of the jury, and not of the appellate court.

(5) The question for the appeal court is whether, upon its examination of the record - by reason of inconsistencies, discrepancies or other inadequacy, or in light of other evidence - the court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to guilt.

(6) A doubt experienced by an appeal court would be a doubt that a jury ought also to have experienced, unless the jury's advantage in seeing and hearing the evidence is capable of resolving that doubt.

(7) If the evidence, upon the record, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the appeal 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, then the appeal court must set aside the verdict.

(8) The setting aside of a jury's verdict on the ground that it is unreasonable within the meaning of s 30(3)(a) of the Criminal Appeals Act 2004 (WA) is a serious step, not to be taken without regard to the advantage enjoyed by the jury over an appeal court that has not seen or heard the witnesses called at trial.

1. Further, the nature and extent of the court's task when determining whether a verdict of guilty is unreasonable or cannot be supported will be informed by:[121]

(a) the elements of the offence;

(b) the accused's defence;

(c) the issues in contest at the trial;

(d) the manner in which the trial was conducted;

(e) the way in which the case was ultimately left to the tribunal of fact;

(f) whether the tribunal of fact was a judge (who must state the principles of law that he or she has applied and the findings of fact on which he or she has relied) or a jury (which does not give reasons); and

(g) the particulars of the ground of appeal.

1. As has already been noted, the only issue at the appellant's trial was whether the State had satisfied the jury beyond reasonable doubt that the appellant was the person who repeatedly stabbed the deceased. There was no issue that only one person stabbed the deceased. There was also no issue that it was the act of stabbing that caused the deceased's death and that whoever stabbed the deceased did so with the intention necessary for the offence of murder, contrary to s 279 of the Criminal Code (WA).
2. In his written submissions, the appellant submitted that the jury's verdict was unreasonable or that it cannot be supported, having regard to the following matters:

(d) the description by witnesses of the appellant's clothing and appearance on the night is contrary to witnesses' description and video footage of the assault;

(e) there are significant inadequacies in witness recognition and identification evidence; and

(f) witness recognition and identity evidence is tainted by the influence of social media and sharing of photographs, video and social media following the incident.

1. In support of those contentions, the appellant raises various issues about the cogency of the evidence given by each of the eight eyewitnesses. He also refers to aspects of the evidence of the investigating police officer, and to the evidence given by the appellant.
2. The appellant gave evidence that he did not participate in any of the fighting that took place after the house party in Waikiki, and that he left and went to his cousin's house. However, it was plainly open to the jury to reject the appellant's evidence. In particular, it was open to the jury to consider that his evidence that he was the only person from his group of acquaintances, which included Taylor Bainbridge, Javontay Dunn, Adam Davis and Tame Graham who did not participate in the attack on the deceased lacked credibility. The jury were also entitled to think that his evidence that he left the party when he saw some fighting, without making any effort to find any of the group of people he was with at the party, strained credulity.
3. Having had the benefit of seeing and hearing the appellant give evidence, it was plainly open to the jury to reject his evidence and, acting in accordance with the trial judge's directions, to put that evidence to one side and to then decide whether the State had proved his guilt based on the evidence they did accept.
4. In support of his contention that the verdict of guilty was unreasonable and cannot be supported, the appellant refers in his written submissions to the evidence given by the each of the eyewitnesses. By making selected reference to aspects of the evidence given by those witnesses the appellant submits that this court should conclude that the jury, acting rationally, ought to have entertained a reasonable doubt as to his guilt.
5. In relation to Ms Connal's evidence, it is submitted that her evidence was unreliable because her identification of the appellant was based on what her friend said to her when they watched the video footage of the assault on the deceased which Ms Connal had recorded on her mobile telephone.
6. The appellant criticises Mr McAuliffe's evidence because he told the police that the appellant was wearing clothes that were inconsistent with those worn by the person depicted in the mobile telephone footage, whom the State alleged was the person who stabbed the deceased. It is also submitted that Mr McAuliffe's evidence lacked credibility because he had not previously told police that he had actually seen the deceased being stabbed.
7. In relation to Mr Gorman, it is submitted that the circumstances of his identification 'cast significant doubt on the reliability of his identification of the appellant'.[122] In support of that contention, the appellant points to the fact that Mr Gorman only purported to know the appellant through social media posts, that it was dark when he saw the deceased being stabbed, that he wore glasses, and that it was inherently unlikely that he would have been able to see a scar on the attacker's face, let alone a scar that could lead to a reliable identification of the appellant.
8. In the appellant's submissions, it is said that Mr Bainbridge did not make a positive identification of the appellant from video that was shown to him by police after he was arrested, as he appeared to leave open the possibility that it was his brother. The appellant also points to the fact that Mr Bainbridge was affected by alcohol at the time of the attack on the deceased. He also notes that Mr Bainbridge's charge was downgraded, and that he obtained a discount on his sentence for providing cooperation to the authorities.
9. In relation to Mr Britto, the appellant refers to the fact that he had consumed some alcohol at the party, and that he did not know the appellant. The appellant also appears to submit that Mr Britto made his identification of the appellant in confusing circumstances, as he saw several people fighting at the same time. The appellant's submission about Mr Britto's evidence is summarised as follows:[123]

Circumstances of the digiboard identification need to be balanced against the conditions on the night, the witness was a significant distance away from the incident, with a somewhat obstructed view and had consumed alcohol.

1. The appellant also refers to the evidence given by Ms Waaka, Ms Clarke and Ms Devine. However, as none of those witnesses identified the appellant, it is unnecessary to consider the appellant's submissions about those witnesses any further.
2. In relation to the evidence given by the investigating police officer, Detective Pitts, other than to note that there was no forensic evidence linking the appellant to the offence, the appellant does not suggest that Detective Pitts' evidence reveals any inconsistencies, discrepancies or other inadequacies, or that there exists any other reason why this court should be satisfied that the jury, acting rationally, ought to have entertained a reasonable doubt as to the appellant's guilt.
3. However, even if the appellant's criticisms of the evidence given by Ms Connal, Mr Gorman, Mr McAuliffe, and Mr Bainbridge are accepted, and even if it is also accepted that it would not have been open to the jury to convict the appellant based on that evidence, it was plainly open to the jury to accept Mr Britto's evidence and to conclude that he had correctly identified the appellant in an identification procedure that was conducted on 3 January 2021, a matter of weeks after the attack on the deceased.
4. A video recording of Mr Britto's identification procedure was played to the jury and tendered as exhibit 5. That video shows that after examining the relevant digiboard for about 30 seconds, Mr Britto unhesitatingly placed a finger on the photograph of the appellant.[124] Although Mr Britto did not know the appellant, he did not express any doubts about his identification, and nothing occurred during the identification that would suggest that Mr Britto did anything less than make a reliable positive identification of the appellant.
5. At trial, Mr Britto gave evidence that the photograph he selected during the identification procedure was a photograph of the person he saw stabbing the deceased.
6. Although Mr Britto also gave evidence that he consumed alcohol at the Waikiki party, saying that he 'had a few cans' of 'Double Black Smirnoff',[125] there was no evidence that he was drunk or otherwise affected by alcohol to such an extent that it had any adverse effect on his ability to make an accurate identification. Further, his evidence that the attacker was 'maybe' wearing a yellow shirt did not significantly diminish the weight the jury could properly have placed on his identification. Given the evidence that Mr Bainbridge was wearing a yellow top while assaulting the deceased at the same time the deceased was being stabbed, it is hardly surprising that Mr Britto may have harboured some doubts about his recollection of an article of clothing being worn by the person he saw stabbing the deceased.
7. Mr Britto's identification of the appellant as the stabber was not directly challenged in cross‑examination. The appellant's counsel sought to undermine Mr Britto's identification by insinuating that the circumstances in which he saw the deceased being stabbed were confusing, particularly given the large number of people who were in the vicinity at the time. However, it was open to the jury to conclude that the cross‑examination fell well short of achieving its intended objective.
8. In his cross‑examination and his closing address, trial counsel also attempted to float the idea that Mr Britto's identification had been infected because he had looked at images shared using social media, including footage of the incident recorded by Ms Clarke. However, there was no evidence that Mr Britto had seen any relevant images on social media before he participated in the identification procedure. In fact, Mr Britto said that he was not on Facebook at the time of the incident. Mr Britto also confirmed in re‑examination that he only watched the footage recorded on Ms Clarke's mobile telephone after the identification procedure.
9. On the evidence, there was no rational basis for concluding that Mr Britto's identification of a photograph of the appellant from a digiboard, and his evidence that the person he had identified was the person who stabbed the deceased, was the product of contamination or suggestion.
10. Having had the benefit of seeing and hearing Mr Britto give evidence, it was plainly open to the jury to accept his evidence, and to give significant weight to the identification he had made of the appellant as the person who stabbed the deceased.
11. If the jury accepted Mr Britto's evidence, and accepted that his identification of the appellant as the person who stabbed the deceased was accurate, it was open to the jury to conclude on the basis of that evidence alone that the State had proved beyond reasonable doubt that he was guilty of the offence of murder. It was open to the jury to reach that conclusion even if the jury must also have rejected the evidence given by all the other eyewitnesses.
12. In saying that Mr Britto's evidence was sufficient to sustain the conviction, it should not be understood that the appellant's submissions regarding the other identification witnesses are accepted. Indeed, for reasons given earlier it was plainly open to the jury to accept the evidence as to the identity of the stabber given by Ms Connal, Mr Bainbridge, Mr Gorman and Mr McAuliffe, notwithstanding the matters raised by the appellant. Further, the collective force of this evidence was well capable of dispelling any reasonable doubt that there had been a misidentification.
13. There is no merit in the appellant's contention that the verdict was unreasonable or that it cannot be supported, having regard to the evidence. The guilty verdict was supported by evidence that the jury was entitled to accept. My review and assessment of the evidence does not cause me to doubt the appellant's guilt. I am not satisfied that it would be dangerous to permit the guilty verdict to stand, or that there is a significant possibility that an innocent person has been convicted. Ground 5 must be dismissed.

1. As none of the grounds of appeal have any merit, leave to appeal should be refused in relation to all those grounds.
2. In those circumstances, the appeal is taken to be dismissed.

1. The State's application for leave to adduce additional evidence filed 26 June 2023 is allowed.
2. Leave to appeal is refused in respect of all grounds of appeal.
3. The appeal is dismissed.

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

[1] LNV v The State of Western Australia [2019] WASCA 180.

[3] Boucher v The Queen [1955] SCR 16, 24 (Rand J), cited by Buss P and Sofronoff AJA in LNV [71].

[4] 'File 2A' was tendered at trial as part of exhibit 3. Exhibit 3 was a bundle of mobile telephone footage taken of the incident by various people who witnessed the event. File 2A was not shown to Mr Britto during his evidence.

[8] A series of 12 photographs in which a photograph of the appellant appeared, together with a number of 'fillers' (Winmar v The State of Western Australia [2007] WASCA 244; (2007) 35 WAR 159 [31]).

[29] Bull Creek and Booragoon are two suburbs in Perth that are nearby one another.

[30] HCF v The Queen [2023] HCA 35; (2023) 97 ALJR 978 [2] (Gageler CJ, Gleeson & Jagot JJ).

[31] TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124 [8].

[34] Gilbert v The Queen [2000] HCA 15; (2000) 201 CLR 414 [13] (Gleeson CJ & Gummow J), [31] (McHugh J); Dupas v The Queen [2010] HCA 20; (2010) 241 CLR 237 [28] ‑ [29] (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel & Bell JJ).

[42] Wood v The Queen [2012] NSWCCA 21; (2012) 84 NSWLR 581.

[43] Palmer v The Queen [1998] HCA 2; (1998) 193 CLR 1.

[45] Woon v The Queen [1964] HCA 23; (1964) 109 CLR 529.

[46] Woon, 541 (Windeyer J). See also R v BEC [2023] QCA 154 [65] ‑ [81] (Livesey AJA).

[47] See Livesey AJA's discussion of the relevant principles in BEC.

[53] Hargraves v The Queen [2011] HCA 44; (2011) 245 CLR 257. See also XHA v The State of Western Australia [2022] WASCA 8.

[54] Robinson v The Queen [1991] HCA 38; (1991) 180 CLR 531.

[56] Curran v The Queen [2020] NSWCCA 171. See also Wise v The Queen [2019] NTCCA 10 and DC v The Queen [2022] NTCCA 8; (2022) 298 A Crim R 376.

[57] Curran [119] (R A Hulme J & Hamill J agreeing).

[58] See Liberato v The Queen [1985] HCA 66; (1985) 159 CLR 507.

[60] HCF v The Queen [2023] HCA 35; (2023) 97 ALJR 978 [2].

[61] The difference between 'identification evidence' and 'recognition evidence' was explained by Buss JA (as his Honour then was) in Mills v The State of Western Australia [2008] WASCA 219; (2008) 189 A Crim R 411 [73]. The difference is not material to the outcome of this ground of appeal.

[62] R v Soma [2003] HCA 13; (2003) 212 CLR 299 [11], [79]; Thorns v The State of Western Australia [2022] WASCA 127 [192].

[63] HCF v The Queen [2023] HCA 35; (2023) 97 ALJR 978 [2], quoting Zhou v The Queen [2021] NSWCCA 278 [22] (Beech‑Jones CJ at CL, Davies & Wilson JJ agreeing).

[64] MNA v The State of Western Australia [2020] WASCA 84 [34] (Buss P & Mitchell JA).

[65] Goldsmith v Sandilands [2002] HCA 31; (2002) 76 ALJR 1024 [2].

[67] See, for example, Alexander v The Queen [1981] HCA 17; (1981) 145 CLR 395 [8] (Gibbs CJ).

[68] As discussed in R v Crawford [2015] SASCFC 112; (2015) 123 SASR 353 [25].

[70] ISN v The State of Western Australia [No 2] [2021] WASCA 112 [97].

[71] Smith v The Queen [2001] HCA 50; (2001) 206 CLR 650.

[72] R v Christie [1914] UKLawRpAC 20; [1914] AC 545. See, for example, Police v Dunstall [2015] HCA 26; (2015) 256 CLR 403 [26] (French CJ, Kiefel, Bell, Gageler & Keane JJ), [60] (Nettle J).

[73] Le-Ta v The State of Western Australia [2020] WASCA 14 [44]. See also, Festa v The Queen [2001] HCA 72; (2001) 208 CLR 593 [22] and R v Dickman [2017] HCA 24; (2017) 261 CLR 601 [48].

[74] R v S, DD [2010] SASCFC 80; (2010) 109 SASR 46 [120] ‑ [123], which was cited with approval in Falkiner v The Queen [2019] SASCFC 118 [39]. See also R v Nelson [2004] NSWCCA 231; (2004) 41 MVR 10 and R v Taouk [2005] NSWCCA 155; (2005) 154 A Crim R 69.

[75] Moore (a pseudonym) v The King [2024] HCA 30; (2024) 98 ALJR 1119.

[76] Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531, 552. See also Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 [23].

[78] RKT v The State of Western Australia [2017] WASCA 13.

[80] Dickman [44], citing Festa [10] ‑ [11], [13] ‑ [14] (Gleeson CJ), [66] ‑ [67] (McHugh J), [171] (Kirby J), [216] (Hayne J).

[81] R v Hards [2018] SASCFC 132 [24] (Bampton J, Kourakis CJ & Stanley J agreeing), citing Dickman [57].

[84] See the discussion about implied assertions and the operation of the rule against hearsay in East Metropolitan Health Service v Jane Elizabeth Popovic as executrix of the will of Emil Popovic [2019] WASCA 18; (2019) 54 WAR 40.

[89] Domican v The Queen [1992] HCA 13; (1992) 173 CLR 555.

[92] It was common ground at the trial that the person on the ground was the deceased.

[93] Smith v The Queen [2001] HCA 50; (2001) 206 CLR 650.

[99] R v Hards [2018] SASCFC 132.

[109] Appellant's submissions, par 56.

[118] Mahmood v The State of Western Australia [2009] WASCA 220 [65].

[119] De Silva v The Queen [2019] HCA 48; (2019) 268 CLR 57 [35].

[120] Sturniolo v The State of Western Australia [2023] WASCA 147 [70].

[121] Wark v The State of Western Australia [2023] WASCA 66 [342].

[122] Appellant's submissions, par 100.

[123] Appellant's submissions, par 139.

[124] Detective Pitts later gave evidence that the relevant photograph was a photograph of the appellant.