Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Criminal law - Appeal against conviction - Evidence - Unlawful killing - Self­defence the sole issue at trial - Admissibility of propensity and relationship evidence - Whether evidence of significant probative value - Risk of an unfair trial - Whether any likelihood of prejudice was guarded against by the trial judge's directions to the jury

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

Evidence Act 1906 (WA), s 31A

Anderson v The Queen (1991) 53 A Crim R 421

Buiks v The State of Western Australia [2008] WASCA 194; (2008) 188 A Crim R 362

Dair v The State of Western Australia [2008] WASCA 72; (2008) 36 WAR 413

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

Dyers v The Queen [2002] HCA 45; (2002) 210 CLR 285

Horsman v The State of Western Australia [2008] WASCA 190; (2008) 187 A Crim R 565

Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488

Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298

Jones v The Queen [1997] HCA 12; (1997) 191 CLR 439

KRM v The Queen [2001] HCA 11; (2001) 206 CLR 221

Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559

M v The Queen [1994] HCA 63; (1994) 181 CLR 487

MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606

Noto v The State of Western Australia [2006] WASCA 278; (2006) 168 A Crim R 457

O'Driscoll v The State of Western Australia [2011] WASCA 175

R v Taufahema [2007] HCA 11; (2007) 228 CLR 232

Reid v The Queen [1980] AC 343

SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400

T (a child) v The Queen (1998) 20 WAR 130

Upton v The State of Western Australia [2008] WASCA 54

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

Wilson v The Queen [1970] HCA 17; (1970) 123 CLR 334

1 MARTIN CJ: At the conclusion of the hearing of this appeal, the court announced that the appeal would be allowed, made the orders set out in the reasons of Buss JA, and advised that reasons would be published later. My reasons for taking that course are encapsulated in the reasons given by Buss JA, with which I agree.

2 BUSS JA: On 14 December 2011, the appellant was convicted, after a trial in the Supreme Court before Hall J and a jury, of unlawfully killing a woman (the deceased), contrary to s 280 of the Criminal Code (WA) (the Code).

4 The appellant appealed to this court against her conviction.

5 When the hearing of the appeal concluded on 15 August 2012, the court made, relevantly, these orders:

(a) leave to appeal granted on grounds of appeal 1 and 2;

6 We said that reasons for decision would be published later. These are my reasons.

Overview of the facts and circumstances culminating in the deceased's death

8 As at 3 February 2011, the deceased was aged 28. She was 167 cm tall and weighed 70 kg. The appellant was then aged 37 and of a similar physique to the deceased.

9 The deceased and the appellant knew each other. They lived in the remote Aboriginal community of Balgo near Halls Creek in the East Kimberley region of Western Australia.

10 Daniel Williams was the deceased's de facto partner. This relationship commenced in about 2008.

11 Previously, between about 1989 and about 2008, the appellant had been in a de facto relationship with Mr Williams. They had four children.

12 On 2 February 2011 (the day before the deceased's death), the deceased and the appellant were involved in a physical altercation at the Male Oval in Broome. This altercation also involved Mr Williams and Gary Green (the appellant's current de facto partner). The conflict arose from feelings of jealousy by the appellant towards the deceased and feelings of jealousy by Mr Williams towards Mr Green.

13 The next day, 3 February 2011, the appellant drank alcohol with Mr Williams, Susan Charmawina and Margaret Williams. In the afternoon, they travelled by taxi to Kennedy Hill and continued drinking with other people, including Mavis Darkie and Julie Darkie.

14 During the afternoon, the deceased approached the group. The appellant was seated on the ground. The deceased began arguing with her about Mr Williams. The deceased removed various items, including clothes, from the backpack she was carrying, and threw them at Mr Williams. She also removed a knife from the backpack.

15 The appellant, while seated, attempted to throw a can of beer at the deceased. The deceased and the appellant were angry. The appellant then got up and a physical altercation began between her and the deceased. During this altercation, they pulled each other's hair and the deceased twice attempted to stab the appellant with the knife. The deceased either relinquished possession or was dispossessed of the knife. The appellant obtained possession of the knife. She stabbed the deceased in the chest, causing a penetrating wound to the deceased's heart. The injury resulted in her death.

16 Mavis Darkie intervened, removing the knife from the appellant's hand and throwing it into nearby bushes.

17 When the deceased was admitted to the mortuary it was ascertained that she had a blood alcohol concentration of 0.194%. The appellant's blood alcohol concentration, at the time of the deceased's death, was about 0.15%.

18 The State's case at trial was that during the physical altercation at Kennedy Hill on the afternoon of 3 February 2011, the deceased dropped the knife and the appellant picked it up. When the appellant stabbed the deceased, and inflicted the fatal injury, the deceased did not pose any threat to the appellant. According to the State, when the appellant stabbed the deceased she was motivated by jealousy and anger. The appellant's actions were not justified or excused at law.

19 At trial, defence counsel made formal admissions, on behalf of the appellant and in her presence, pursuant to s 32 of the Evidence Act 1906 (WA). These admissions included:

(a) on 3 February 2011, the deceased died after sustaining, and as a direct result of, a penetrating wound to the heart from a knife during a physical altercation with the appellant; and

(b) during this altercation, the appellant held the knife at the time it caused the fatal wound to the deceased.

20 The appellant's case at trial was that she had acted in self-defence.

21 It was necessary for the State to prove beyond reasonable doubt that the appellant had not acted in self-defence. This required a consideration of various issues. In particular, whether the appellant believed her action in stabbing the deceased with the knife was necessary to defend herself from a 'harmful act', as defined in s 248(1) of the Code; whether the appellant's action, in stabbing the deceased, was a reasonable response by the appellant in the circumstances as she believed them to be; and whether there were reasonable grounds for the appellant's belief as to the circumstances. See s 248(4) of the Code.

22 The appellant did not give evidence or call any evidence at trial.

The Prior Conviction Evidence admitted under s 31A of the Evidence Act

23 At trial, the State adduced, as 'propensity evidence' (as defined in s 31A(1) of the Evidence Act), evidence of a series of prior convictions recorded against the appellant and the facts underlying those convictions (the Prior Conviction Evidence). The evidence in question was read aloud by the prosecutor, in the presence of the jury, immediately before the close of the State's case. Each prior conviction was entered upon the appellant's plea of guilty.

(a) Conviction dated 22 November 2002 that on 20 November 2002, at Halls Creek, the appellant used threatening behaviour to Jodie Marie Sturt in a place, namely the Halls Creek sports oval, contrary to s 59 of the Police Act 1892 (WA):

The appellant approached the complainant, Jodie Sturt, who was sitting on a bench at the Halls Creek sports oval looking after her young niece. The appellant had a large kitchen knife in her possession which she brandished at shoulder height and threatened the complainant stating, 'I'm going to stab you and I'll see you at the pub tonight.' The complainant ran to the police station. The appellant followed behind. The appellant was apprehended by police. She showed police the knife she had used, stating she only wanted to scare the complainant.

(b) Conviction dated 30 December 2002 that on the 28 December 2002, at Halls Creek, the appellant unlawful1y assaulted Ms Sturt and thereby did her bodily harm, contrary to s 317(1) of the Code:

The appellant was outside the Kimberley Hotel, Halls Creek and watched her husband walk off with a number of people including the complainant, Jodie Sturt. The complainant sat with the appellant's husband and two other males. They commenced drinking beer. The appellant approached the complainant from the rear and threw a small rock at her, hitting her on the rear of the head, causing a two centimetre laceration. The women continued to fight until the appellant's husband broke the fight up and they left the area. The appellant participated in a video record of interview the following day. For an explanation she stated, 'Jodie Sturt was trying to steal my husband from me and she shouldn't do that, that's not right'.

(c) Conviction dated 3 January 2003 that on 30 December 2002, at Halls Creek, the appellant unlawfully assaulted Ms Sturt, contrary to s 313(1) of the Code:

The complainant, Jodie Sturt, was at the Halls Creek police station making a complaint about the appellant being aggressive towards her and that she would not leave her alone. The appellant attended the police station upset and acting in an irrational manner, alleging the complainant was attempting to steal her husband, Daniel Williams. The appellant was asked to leave the station. The appellant left and continued to wait outside the police station acting in a threatening manner while the police spoke to the complainant in the foyer. The appellant re-entered the police station and charged at the complainant, attempting to punch and kick her while she was seated in a chair. The complainant did not retaliate and protected herself by rolling up into a ball.

(d) Conviction dated 26 March 2003 that on 20 February 2003, at Halls Creek, the appellant unlawfully assaulted Ms Sturt and thereby did her bodily harm, contrary to s 317(1) of the Code:

The complainant, Jodie Sturt, was at the White Rocks area near the football oval, Halls Creek, standing next to a car that her sister was driving. The appellant approached her and began arguing with her. The appellant had started arguments and fights with the complainant on several occasions previously because she thought the complainant was trying to steal her husband. The complainant told the appellant she did not want to argue and got into the front passenger seat of the car and shut the door. The appellant picked up a small rock and reached in through the open window and hit the complainant on the top of the head causing a four centimetre cut to her scalp. The appellant participated in a video record of interview where she made admissions to the assault and in explanation she stated, 'I hit her on the head because she was making me mad'.

(e) Conviction dated 25 July 2003 that on 2 May 2003, at Balgo, the appellant unlawfully assaulted Maggie Dominici and thereby did her bodily harm, contrary to s 317(1) of the Code:

The appellant was at the Balgo Aboriginal Community. She approached the home of the complainant, Maggie Dominici, attempting to lure the complainant outside to fight. The complainant opened the front door and proceeded to yell at the appellant telling her to leave the area. The appellant, armed with a metal bar, struck the complainant on the right side of the head above the hairline causing a cut approximately five centimetres long and extensive bleeding. She immediately fled the scene, discarding the weapon as she went. A video record of interview was conducted with the appellant. She complained that the complainant was trying to steal her husband.

(f) Conviction dated 16 October 2007 that on 4 October 2007, at Halls Creek, the appellant unlawfully wounded the deceased, contrary to s 301(1) of the Code:

The appellant was walking towards the Kimberley Hotel. She saw the complainant on Roberta Avenue who was talking on her mobile phone. The appellant went up to the complainant with a rock in her hand and hit her once in the head with the rock without any warning. This blow caused a five centimetre gash above the right eye and bleeding to the complainant. On 5 October 2007 the appellant participated in a video record of interview. She admitted the offence and told the police she did it over an affair that the complainant had had with her partner.

(g) Conviction dated 24 January 2008 that on 1 January 2008, at Balgo, the appellant unlawfully assaulted the deceased and thereby did her bodily harm, contrary to s 317(1) of the Code:

The appellant was at Top Tent in the Balgo Aboriginal Community. She picked up a one metre long hitting stick and entered House 140. After confirming the complainant (the deceased) was inside watching TV, the appellant shouted at the complainant. She walked over to the complainant who was lying down at the time, struck her once to the top of the head with the stick, causing a four centimetre cut, bruising and swelling. The complainant raised her right arm to protect her head and the appellant struck her arm with the stick causing severe swelling and bruising to the right forearm. The appellant's explanation was, 'She was messing around with my husband.'

(h) Conviction dated 24 January 2008 that on 9 January 2008, at Halls Creek, the appellant unlawfully wounded Roslyn Mandajarri, contrary to s 301(1) of the Code:

The appellant was in an area known as Dinner Camp Halls Creek. She approached the complainant, Roslyn Mandajarri, from behind. The complainant was sitting alone. The appellant had a broken bottle in her hand. Without warning or conversation, the appellant hit the complainant in the face with the broken bottle. The complainant was hit in the nose. The appellant stood over the complainant and said, 'I can still catch you in Halls Creek'. The complainant attended Halls Creek hospital where a piece of glass was removed from her nose and she received two stitches. The appellant stated that she assaulted the complainant over jealousy issues over her husband.

25 Defence counsel did not object to the mode of proof of the Prior Conviction Evidence.

The trial judge's ruling on the Prior Conviction Evidence admitted under s 31A of the Evidence Act

26 The trial occupied the period from 12 December 2011 to 14 December 2011.

27 Defence counsel objected to the admissibility of the Prior Conviction Evidence.

28 The trial judge made a provisional ruling, at a pre-trial hearing on 7 December 2011, that the Prior Conviction Evidence was admissible.

29 Section 31A provides, relevantly:

(1) In this section -

propensity evidence means -

(a) similar fact evidence or other evidence of the conduct of the accused person; or

(b) evidence of the character or reputation of the accused person or of a tendency that the accused person has or had;

relationship evidence means evidence of the attitude or conduct of the accused person towards another person, or a class of persons, over a period of time.

(2) Propensity evidence or relationship evidence is admissible in proceedings for an offence if the court considers -

(a) that the evidence would, either by itself or having regard to other evidence adduced or to be adduced, have significant probative value; and

(b) that the probative value of the evidence compared to the degree of risk of an unfair trial, is such that fair-minded people would think that the public interest in adducing all relevant evidence of guilt must have priority over the risk of an unfair trial.

30 His Honour decided that the Prior Conviction Evidence was 'propensity evidence', as defined in s 31A(1), and that it had 'significant probative value', within s 31A(2)(a). His reasoning was as follows:

Although there were some material differences in the circumstances of the offending and the prior convictions, the proposed propensity evidence, if accepted by the jury, discloses violent conduct by the accused towards the deceased and indeed towards other women.

Propensity evidence does not have to negate the elements of self-defence but, rather, it must be of such consequence that it could rationally affect directly or indirectly the assessment of the probability of whether the accused acted in self-defence.

The evidence could also go to the jury's assessment of the necessity and reasonableness of the accused's act under the circumstances. In this case, given the background of the accused and the deceased and her prior conduct towards other women, this evidence has significant probative value to the ultimate fact in issue (ts 38 - 39).

31 His Honour also decided that the probative value of the Prior Conviction Evidence, compared to the degree of risk of an unfair trial, was such that fair-minded people would think that the public interest in adducing all relevant evidence of guilt must have priority over the risk of an unfair trial. He gave these reasons:

In this case, I am not of the view that the prejudicial value of the proposed propensity evidence outweighs its probative value. Clearly, one of the issues to be determined by the jury will be whether they are satisfied beyond reasonable doubt that the accused was not acting in self-defence.

In addressing that question, the jury will need to consider whether it is open on the evidence that the accused believed that stabbing the deceased was necessary to defend herself; that is, whether there was a reasonable inference available that the accused acted out of a belief that what she did was necessary to defend herself. That she had previously attacked the deceased out of jealousy is capable of rationally affecting an assessment of whether the inference referred to is open. It may be viewed as making it more likely that the accused was acting out of jealous anger. For this reason, evidence of attacks on the deceased are admissible.

As to attacks on others, the prosecution case is that the knife was dropped by the deceased and then picked up by the accused and used. The fact that the accused has a propensity for violence may make more likely an inference that the accused acted in an unnecessarily violent way rather than in self-defence. It may be used by the jury to conclude that the accused's actions are explained as being a deliberately violent act of retaliation rather than an act based upon a belief as to a necessity to defend herself (ts 39 - 40).

32 On 13 December 2011, in the course of the trial, the trial judge confirmed his provisional ruling that the Prior Conviction Evidence was admissible. He said:

I think ... there is a risk that the jury might misuse this evidence but that's a risk that in my view can be obviated by careful directions, which is my responsibility, so it is open to the jury on the evidence, depending on what their view of it is, to reach a conclusion that the deceased was disarmed at some point and that the accused obtained possession of the knife and utilised it.

In determining, as they must, what her state of mind was, because the issue of self-defence rises critically in this case, it will be relevant, I think, for them to take into account that there is evidence of a propensity of the accused towards violence, and in particular a relationship between her and the deceased that was one that had manifested in violence on previous occasions.

The directions I will give the jury will be to carefully confine that evidence to the issue of determination of state of mind and naturally that it doesn't follow that because the accused might have initiated violence on previous occasions that she was not acting in self-defence on this occasion. So my position is that I will not vary the ruling that I reached on the previous occasion (ts 190).

The trial judge's summary for the jury about the fight and the circumstances in which the appellant obtained possession of the knife

33 The trial judge summarised for the jury the fight and the circumstances in which the appellant obtained possession of the knife:

The evidence, you might think, is clear. It's a matter for you, but you might think that it's clear that [the appellant] was not the initiator of this fight, nor was she the one who first produced the knife, nor was she the one who made threats with it. That was the deceased. It is also clear, you might think, that there was a physical fight in which both were grappling or wrestling. At least initially the deceased continued to be holding the knife during that physical fight. Whether or not the deceased was disarmed or dropped the knife is a matter for you.

The only witness who speaks as to that was Mr Williams. It's a matter for you whether you think he was a reliable witness. In any event, he says that it all happened very quickly. Don't make the mistake of thinking that the whole thing necessarily turns upon whether the knife was dropped, because as I will come to in a moment, it depends critically upon what the state of mind of [the appellant] was in the circumstances that she believed them to be (ts 212).

34 Mr Williams gave evidence to the effect that the deceased and the appellant were wrestling and pulling each other's hair while they were standing (ts 105), the deceased twice attempted to stab the appellant with the knife (ts 110), the knife fell to the ground (ts 105, 110), and the appellant picked it up 'really quick' and stabbed the deceased under the left breast (ts 105, 110 - 111).

The trial judge's directions to the jury on the Prior Conviction Evidence

35 The trial judge explained to the jury, in his summing up, the relevance of the Prior Conviction Evidence:

What is relevant is the extent to which the facts of those previous offences may give you some assistance in determining what her state of mind was at the relevant time; that is, when she wielded the knife. It doesn't necessarily lead to a conclusion but it's one factor amongst others that you can take into account (ts 214).

36 His Honour gave the jury these directions about the use it could make of the Prior Conviction Evidence:

First, you can't just assume that because a person has committed acts of violence in the past, they must be guilty of this offence. [The appellant] is not on trial here for what she has done in the past. She has been convicted of those offences and dealt with for them, so it's not a case of her simply being found guilty because she has got a prior record.

Second, it doesn't follow that because [the appellant] has been violent when feeling jealous, that she must have had the same feelings on this occasion. It's a factor that you need to take into account in determining the circumstances that may apply when she was in possession of the knife at the time the wound was inflicted. You can take those prior incidents into account but you should also take into account the other circumstances that existed at the time. Take into account that [the appellant] on this occasion was not the initial aggressor, it would seem on the evidence, and that she was not the person who introduced the weapon; that is, the knife.

Thirdly, in respect of this evidence the relevance is only as to what it tells you about her relationship with the deceased and whether she has a tendency to violence in certain circumstances. This is relevant when it comes to assessing what her state of mind was when she used the knife. You can use the evidence when you are considering whether it is open on the evidence for [the appellant] to have been acting in self-defence.

It doesn't follow ... because a person has acted violently towards a particular person or acted violently in certain circumstances, that they must have done so on this occasion. It may be that on the evidence that you find that notwithstanding that past conduct, she did act in self-defence or it was open for her to have acted in self-defence on this occasion, but it is evidence that you can take into account in assessing that issue.

The prosecution suggest to you that this evidence; that is, the evidence of her past conduct, together with the evidence of the events of the day and the day before, should lead you to a conclusion that [the appellant] was acting on this occasion when she had the knife in a jealous rage and not in self-defence. The defence say to you that the threat in this case was imminent, that the events were very fast and that it is inconceivable that a person who had shown no indications of jealousy or anger on that day, the day that these events happened, should suddenly stab the deceased, and they suggest to you that the circumstances are such that self-defence could not properly be excluded, and indeed are more consistent with it. That's a matter, of course, for you to determine when you consider all of the evidence (ts 214 - 215).

37 The appellant relies on three grounds of appeal.

38 Ground 1 alleges that the trial judge erred in law in deciding to admit the Prior Conviction Evidence and, as a result, there was a miscarriage of justice.

39 Ground 2 alleges that his Honour erred in law by failing to give adequate directions to the jury as to the use it could make of the Prior Conviction Evidence and, as a result, a miscarriage of justice occurred.

40 Ground 3 alleges that the jury's verdict of guilty was 'unreasonable or cannot be supported' by the evidence.

41 On 6 April 2012, Mazza JA granted leave to appeal on ground 3 and referred the application for leave to appeal on grounds 1 and 2 to the hearing of the appeal.

Ground 1: s 31A(2): general principles

42 In s 31A(1), 'propensity evidence' is defined by reference to the conduct, character or reputation of the accused or a tendency that the accused has or had. It includes similar fact evidence. Section 31A(1) defines 'relationship evidence' in more specific terms, by reference to the accused's attitude or conduct towards another person, or a class of persons, over a period of time. The categories of 'propensity evidence' and 'relationship evidence', as defined in s 31A(1), are not mutually exclusive. There will, no doubt, often be cases where evidence which answers the description of 'relationship evidence' will also fall within the definition of 'propensity evidence'.

43 The tests for admissibility in s 31A(2)(a) and (b) apply to both 'propensity evidence' and 'relationship evidence', as defined. Neither 'propensity evidence' nor 'relationship evidence' will be admissible under s 31A unless the court considers that:

(a) the evidence would, either by itself or having regard to other evidence adduced or to be adduced, have significant probative value; and

(b) the probative value of the evidence compared to the degree of risk of an unfair trial, is such that fair-minded people would think that the public interest in adducing all relevant evidence of guilt must have priority over the risk of an unfair trial.

44 The court may decide, in a particular case, that the tests in s 31A(2)(a) and (b) are satisfied in relation to the proposed evidence generally; that is, the evidence should be admitted generally at the trial, and not merely for a particular or limited purpose. Alternatively, the court may decide, in a particular case, that the test in s 31A(2)(a) is satisfied, but the test in s 31A(2)(b) is not satisfied unless the evidence in question is admitted:

(b) subject to the trial judge giving the jury a specific direction or directions in relation to the evidence.

45 These examples are not an exhaustive statement of the issues which may arise in considering the application of s 31A to the facts and circumstances of a particular case or how those issues should be resolved.

46 Where 'propensity evidence' or 'relationship evidence' is disputed by the accused, it is, nevertheless, admissible as part of the State's case if the conditions in s 31A(2)(a) and (b) are satisfied.

47 In Dair v The State of Western Australia [2008] WASCA 72; (2008) 36 WAR 413 [60] - [61], Steytler P said in relation to the concept of 'significant probative value' within s 31A(2)(a):

The evidence in question must obviously be relevant before it can be admitted into evidence. That is to say, it must be such as could rationally affect, directly or indirectly, the assessment of the probability of the existence of a fact in issue in the proceeding: Goldsmith v Sandilands [2002] HCA 31; (2002) 76 ALJR 1024 [2] (Gleeson CJ); Phillips v The Queen [2006] HCA 4; (2006) 225 CLR 303 [50]. It could otherwise have no probative value, let alone 'significant' probative value.

Before evidence can have significant probative value it must be such as 'could rationally affect the assessment of the probability of the relevant fact in issue to a significant extent: ie, more is required than mere ... relevance': Zaknic Pty Ltd v Svelte Corporation Pty Ltd [1995] FCA 1739; (1995) 61 FCR 171, 175 - 176. Heydon [21245] suggests that significant probative value is something more than mere relevance but something less than a 'substantial' degree of relevance and that it is a probative value which is 'important' or 'of consequence'. He makes the point that the significance of the probative value of tendency evidence must depend on the nature of the facts in issue to which it is relevant and the significance or importance which that evidence may have in establishing the fact: Lockyer (1996) 89 A Crim R 457, 459; Lock (1997) 91 A Crim R 356, 360 - 361; Fordham (1997) 98 A Crim R 359, 370; Jacara Pty Ltd v Perpetual Trustees WA Ltd [2000] FCA 1886; (2000) 106 FCR 51 [77] - [82]; The State of Western Australia v Osborne [2007] WASCA 183 [13].

48 This analysis was approved in Horsman v The State of Western Australia [2008] WASCA 190; (2008) 187 A Crim R 565 [22] (Buss JA, Martin CJ & Miller JA agreeing) and Buiks v The State of Western Australia [2008] WASCA 194; (2008) 188 A Crim R 362 [45] (Buss JA, Miller JA agreeing).

(a) Evidence has 'probative value' if the evidence could rationally affect, directly or indirectly, the assessment of the probability of the existence of a fact in issue.

(b) The test in s 31A(2)(a) will be satisfied if the court 'considers' (that is, thinks) that the propensity evidence 'would' (as distinct from could), either by itself or having regard to other evidence adduced or to be adduced, rationally affect, to a significant extent, the assessment of the probability of the existence of a fact in issue.

(c) The adjective 'significant', in the phrase 'significant probative value' in s 31A(2)(a), connotes 'important' or 'of consequence'.

(d) If propensity evidence has 'probative value' then whether the probative value is 'significant' will depend upon the nature of the fact in issue to which it is relevant, and the significance or importance which the propensity evidence, either by itself or having regard to other evidence adduced or to be adduced, has in proving that fact.

50 In Dair, Steytler P made these points about the comparison which s 31A(2)(b) requires. First, s 31A(2)(b) requires the court to assess the degree of risk of unfairness at trial that will be occasioned by the admission of the evidence in question, the court having already found under s 31A(2)(a) that the evidence has significant probative value. Secondly, when assessing the risk of an unfair trial for this purpose, the court must take into account any directions that might be given to the jury in an attempt to overcome the prejudice, and their likely effect on the jury. Thirdly, after identifying the probative value of the evidence in question and the degree of risk of an unfair trial, the court must consider the conclusion that fair-minded people would draw from a comparison of these issues. Although fair-minded people are reasonable members of the general community who are not lawyers, it must be assumed that such people have informed themselves of 'at least the most basic considerations relevant to arriving at a conclusion founded on a fair understanding of all the relevant circumstances': Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 [53] (Kirby J).

51 These observations were approved in Horsman [23] and Buiks [46].

Ground 1: the critical fact in issue at trial for the purposes of the Prior Conviction Evidence

52 The critical fact in issue at trial, for the purposes of the Prior Conviction Evidence, was whether the appellant believed her action in stabbing the deceased with the knife was necessary to defend herself from a 'harmful act', as defined in s 248(1) of the Code.

53 This fact in issue involved, more generally, an assessment of her state of mind when she obtained possession of the knife and used it to stab the deceased.

54 Counsel for the State submitted that the part of the Prior Conviction Evidence which relates to the appellant's prior convictions for threatening or assaulting women other than the deceased had significant probative value in that it established the appellant's tendency to inflict violence, using weapons, on women towards whom she felt animus, because of their relationship with her partner, where her anger was piqued. It was submitted that this tendency had the capacity to explain the appellant's action in stabbing the deceased as a retaliatory and punitive act, rather than one done in self-defence.

55 Counsel for the State submitted that the part of the Prior Conviction Evidence which relates to the appellant's prior convictions for assaulting the deceased had significant probative value in that it established a long-standing animus between the appellant and the deceased. This animus, so it was submitted, was of such a degree as to have provoked previous violent acts by the appellant towards the deceased. Again, this was capable of explaining the appellant's action in stabbing the deceased as a retaliatory and punitive act, steeped in animosity, rather than one done in self-defence.

56 Counsel for the appellant submitted that the Prior Conviction Evidence distracted the jury from the proper task at hand. The jury was required to consider the appellant's state of mind 'through the prism' of an attack on her with a large knife. The Prior Conviction Evidence shifted the emphasis from looking at the appellant's state of mind when under attack to looking at her as someone who reacted violently when jealous.

57 It was submitted that the Prior Conviction Evidence was wholly irrelevant to the only issue to be decided by the jury. The evidence was therefore inadmissible. Even if the evidence had some marginal relevance, it could not be said to have been significantly probative in determining the appellant's state of mind at the time she defended herself while under attack, and inflicted the single fatal wound with the deceased's weapon.

58 Further, counsel for the appellant submitted that the Prior Conviction Evidence was 'plainly prejudicial'. According to counsel, 'the sheer number of convictions for violence, and the fact that [the appellant] had always been portrayed as ... irrationally and unjustifiably violent' meant that no direction, even an emphatic direction, on this issue could adequately address the prejudice that would, no doubt, have affected the jury's analysis of the appellant's state of mind at the material time.

Ground 1: the Prior Conviction Evidence in relation to women other than the deceased

59 I will deal, first, with the part of the Prior Conviction Evidence which relates to the appellant's prior convictions for threatening or assaulting women other than the deceased.

60 The prior convictions for threatening or assaulting women other than the deceased relate to events occurring on 20 November 2002, 28 December 2002, 30 December 2002, 20 February 2003, 2 May 2003 and 9 January 2008. Five of these offences were committed about eight years before the deceased was killed. The other offence occurred about three years before she died. There was no evidence that the appellant had attacked any women other than the deceased between 3 May 2003 and 8 January 2008 (inclusive) or between 10 January 2008 and 3 February 2011 (inclusive).

61 Each of the prior convictions concerning women other than the deceased involved the appellant attacking the victim without provocation. The appellant was the aggressor. None of the appellant's criminal conduct was in response to a harmful act by the victim towards the appellant or another person. None of the victims retaliated.

62 The appellant's threats or assaults against women other than the deceased involved some premeditation. Her violence was not impulsive or reactive. In most of the cases she demonstrated some guile.

63 The appellant used a weapon in threatening or assaulting each of the women other than the deceased, with the exception of the offending against Ms Sturt on 30 December 2002. The appellant brandished a large kitchen knife in threatening Ms Sturt on 20 November 2002; she struck Ms Sturt with a small rock on 28 December 2002; she hit Ms Sturt with a small rock on 20 February 2003; she was armed with a metal bar when she attacked Ms Dominici on 2 May 2003; and she struck Ms Mandajarri with a broken bottle on 9 January 2008.

64 The offences committed by the appellant against women other than the deceased in 2002 and 2003 occurred during the subsistence of her de facto relationship with Mr Williams. The offence which the appellant committed on 9 January 2008 against Ms Mandajarri appears to have occurred at about the time this relationship ceased.

65 All of the appellant's threats or assaults against women other than the deceased between 2002 and 2008 arose from the appellant's jealous rage. She believed that each of the women she attacked was either involved in or attempting to instigate an improper liaison with her then de facto partner, Mr Williams.

66 I will assume for the purposes of ground 1, favourably to the State, that the part of the Prior Conviction Evidence which relates to the appellant's prior convictions for threatening or assaulting women other than the deceased was relevant to the critical fact in issue at trial, namely, whether the appellant believed her action in stabbing the deceased with the knife was necessary to defend herself from a 'harmful act', as defined in s 248(1) of the Code.

67 In my opinion, even if the evidence in question was relevant and therefore probative of this fact in issue, the evidence did not have 'significant' probative value. My reasons are as follows.

68 First, the 2002 and 2003 offences were remote in time from the alleged unlawful killing of the deceased on 3 February 2011. Also, there was a substantial interval between the offence on 9 January 2008 and the alleged unlawful killing. There was no evidence that the appellant had threatened or assaulted any women other than the deceased on any other occasion.

69 Secondly, none of Ms Sturt, Ms Dominici or Ms Mandajarri was present on 2 or 3 February 2011 when violence erupted between the appellant and the deceased.

70 Thirdly, the 2002 and 2003 offences arose from the appellant's jealous rage during the subsistence of her de facto relationship with Mr Williams. Similarly, the 9 January 2008 offence arose from her jealous rage at about the time this relationship ceased. On each occasion, the appellant believed that the woman she attacked was pursuing an improper liaison with Mr Williams, who was then her de facto partner. By contrast, when the alleged unlawful killing occurred the appellant's relationship with Mr Williams had ended about two and a half to three years earlier.

71 Fourthly, the appellant was the aggressor throughout each of the incidents in which she committed each of the 2002, 2003 and 9 January 2008 offences. By contrast, the alleged unlawful killing of the deceased involved the appellant reacting to the deceased's aggressive and violent attack, while armed with a knife, against her.

72 Fifthly, the 2002, 2003 and 9 January 2008 offences (with the exception of the 30 December 2002 offence) involved some premeditation and guile. By contrast, on 3 February 2011 the appellant obtained possession of the knife and stabbed the deceased within a very short interval after the deceased either relinquished possession or was dispossessed.

73 In the circumstances I have described at [68] - [72] above, the only conclusion reasonably open is that the convictions recorded against the appellant for the offences committed in 2002, 2003 and 9 January 2008, and the facts underlying those convictions, were not important, either by themselves or having regard to other evidence adduced or to be adduced, in proving that the appellant did not believe that her action in stabbing the deceased with the knife on 3 February 2011 was necessary to defend herself. The evidence in question did not have 'significant' probative value within s 31A(2)(a).

74 It follows that the part of the Prior Conviction Evidence which relates to the appellant's prior convictions for threatening or assaulting women other than the deceased was not admissible. My conclusion in relation to the test in s 31A(2)(a) makes it unnecessary to consider whether the test in s 31A(2)(b) was satisfied. Ground 1 has been made out in relation to this evidence.

Ground 1: the Prior Conviction Evidence in relation to the deceased

75 I will now deal with the part of the Prior Conviction Evidence which relates to the appellant's prior convictions for assaulting the deceased.

76 The prior convictions for assaulting the deceased relate to events occurring on 4 October 2007 and 1 January 2008. These offences were committed about three to three and a half years before the deceased was killed.

77 Virtually all of the features of the prior offences involving women other than the deceased, which I have described at [61] - [65] above, were also features of the prior offences involving the deceased. That is, the appellant was the aggressor; none of the appellant's criminal conduct was in response to a harmful act by the deceased towards the appellant or another person; the deceased did not retaliate; the appellant's assaults against the deceased involved some premeditation; her violence was not impulsive or reactive; the appellant used a weapon in attacking the deceased (a rock on 4 October 2007 and a stick on 1 January 2008); the first offence occurred during the subsistence of the appellant's de facto relationship with Mr Williams and the second appears to have occurred at about the time this relationship ceased; and both of the assaults arose from the appellant's jealous rage in that she believed the deceased was pursuing an improper liaison with Mr Williams.

78 In my opinion, the part of the Prior Conviction Evidence which relates to the appellant's prior convictions for assaulting the deceased was 'relationship evidence', as defined in s 31A(1), in that it was evidence of the attitude or conduct of the appellant towards the deceased over a period of time.

79 I will now address the test in s 31A(2)(a).

80 The evidence in question was relevant to whether the appellant believed her action in stabbing the deceased with the knife was necessary to defend herself from a 'harmful act', as defined in s 248(1) of the Code. Also, I consider that the evidence had 'significant' probative value. My reasons for concluding that the test in s 31A(2)(a) was satisfied are these.

81 First, this evidence was distinguishable from the evidence relating to the appellant's prior convictions for assaulting women other than the deceased. The appellant was being tried for the unlawful killing of the deceased, and not with threatening, assaulting or unlawfully killing Ms Sturt, Ms Dominici or Ms Mandajarri.

82 Secondly, the State's case was that there was a long-standing animus between the appellant and the deceased, and the appellant's action in stabbing the deceased was a retaliatory and punitive act, arising from this animosity, rather than an action done in self-defence. On the State's case, the alleged animus had developed and been fuelled, over a substantial interval of time, by the appellant's jealousy and anger towards the deceased as a result of the deceased forming a liaison with Mr Williams and then replacing her as his de facto partner. In these circumstances, the totality of the relationship between the appellant and the deceased, including its dynamics and development over time, was not only relevant to, but important in assessing, the appellant's mental state when she obtained possession of the knife and used it to stab the deceased. Did the appellant believe that her action in stabbing the deceased was necessary to defend herself from a 'harmful act'? Alternatively, was the stabbing a vengeful act emanating from the appellant's festering grudge towards the rival who had displaced her in Mr Williams' affections? The issue for the jury was whether the State had negatived beyond reasonable doubt at least one of the elements of self-defence. The evidence in question was a striking feature of the relationship between the appellant and the deceased, and was of material consequence in making findings about one of those elements. Compare Wilson v The Queen [1970] HCA 17; (1970) 123 CLR 334, 337 (Barwick CJ), 344 (Menzies J, McTiernan & Walsh JJ agreeing); T (a child) v The Queen (1998) 20 WAR 130, 140 - 142 (Ipp J); O'Driscoll v The State of Western Australia [2011] WASCA 175 [25] - [41] (Martin CJ, Pullin JA & Hall J agreeing).

83 Thirdly, the degree of temporal proximity between the appellant's assaults against the deceased on 4 October 2007 and 1 January 2008, on the one hand, and the deceased's death on 3 February 2011, on the other, must be evaluated in the context of the evident strength of the appellant's negative feelings towards the deceased and the interaction between them after 1 January 2008. When those factors, including the physical altercation between the appellant and the deceased on 2 February 2011 (the day before the deceased's death), are taken into account, it is apparent that the interval of time between the events of 4 October 2007 and 1 January 2008, on the one hand, and the events culminating in the deceased's death on 3 February 2011, on the other, did not materially diminish the relevance and importance of the earlier events.

84 Fourthly, the evidence in question, in the context of the other evidence adduced by the State as to the interaction between the appellant and the deceased prior to the date of the deceased's death, was strongly probative of the nature of their relationship. The nature of the relationship was strongly probative as to the appellant's state of mind when she stabbed the deceased.

85 I turn now to address the test in s 31A(2)(b).

86 I consider that the probative value of the evidence in question, compared to the degree of risk of an unfair trial, was such that fair-minded people would think that the public interest in adducing all relevant evidence of guilt must have priority over the risk of an unfair trial. My reasons for this conclusion are as follows.

87 There was a risk that the jury might uncritically overvalue the evidence as to the appellant's criminal assaults against the deceased on 4 October 2007 and 1 January 2008. The jury might reason that because the appellant had committed the earlier offences against the deceased, and had otherwise acted discreditably towards her, the appellant would have stabbed the deceased as a retaliatory and punitive act rather than out of self-defence.

88 In my opinion, this risk was able to be adequately guarded against by an appropriate direction to the jury.

89 If the evidence in question was not admitted, the jury would have been presented with an artificially distorted and inaccurate view of relations between the appellant and the deceased, including the overall context of the deceased's attack on the appellant on 3 February 2011 and the appellant's response to it. This distorted and inaccurate view would have compromised the jury's task in assessing the appellant's state of mind when she obtained possession of the knife and used it to stab the deceased. This was a critical fact in issue. It was not merely a collateral or incidental matter.

90 I am therefore of the opinion that the part of the Prior Conviction Evidence which relates to the appellant's prior convictions for assaulting the deceased was admissible. Ground 1 fails in relation to this evidence.

91 Ground 1 succeeds as to the part of the Prior Conviction Evidence which relates to the appellant's prior convictions for threatening or assaulting women other than the deceased. However, ground 1 fails as to the part of the Prior Conviction Evidence which relates to the appellant's prior convictions for assaulting the deceased.

92 The admission of the part of the Prior Conviction Evidence relating to the appellant's prior convictions for threatening or assaulting women other than the deceased occasioned a miscarriage of justice at the trial. The inadmissible evidence was highly prejudicial. It would have been taken into account (or, at least, there is a real, as distinct from a fanciful, risk that it would have been taken into account) in the jury's deliberations on the issue of self-defence.

93 Section 31A is concerned with admissibility. It does not deal with the terms of any directions which a trial judge may or must give to a jury in relation to 'propensity evidence' or 'relationship evidence', as defined.

94 This court has held that if evidence is admitted generally as propensity evidence under s 31A then a 'propensity warning' (that is, a warning of the kind described by McHugh J in KRM v The Queen [2001] HCA 11; (2001) 206 CLR 221 [2] - [3]) is not required because the very purpose of the evidence is to prove that the accused is the type of person who is likely to have committed the offence or offences charged. See Noto v The State of Western Australia [2006] WASCA 278; (2006) 168 A Crim R 457 [26] - [28] (McLure JA, Steytler P & Wheeler JA agreeing); Upton v The State of Western Australia [2008] WASCA 54 [65] (Steytler P, McLure & Pullin JJA agreeing); Dair [64] (Steytler P).

95 Otherwise, a warning should be given if it is necessary, in the circumstances of the particular case, to avoid a perceptible risk of a miscarriage of justice.

96 Counsel for the appellant submitted that the trial judge failed adequately to direct the jury that it must be satisfied beyond reasonable doubt that the deceased had dropped the knife and the appellant had picked it up before the jury could use the Prior Conviction Evidence against the appellant.

97 It was also submitted that his Honour failed adequately to direct the jury as to the limited capacity of the evidence in question to bear upon her guilt.

98 During the hearing of the appeal, counsel for the appellant formulated the direction which he contended the trial judge should have given the jury:

That before you as the jury should take into account the appellant's prior conduct, you need to consider firstly the time frame within which her actions on this occasion took place and to that end the state contends that it is relevant because the knife fell to the ground and she had time to form an intention of jealous rage because the knife had fallen to the ground (appeal ts 18).

99 Counsel for the appellant (who was also defence counsel at trial) did not, however, seek any redirection or additional direction from the trial judge in relation to the Prior Conviction Evidence.

100 I will examine the merits of ground 2 on the assumption that, contrary to my opinion in relation to ground 1, all of the Prior Conviction Evidence was admissible.

101 At trial, Mr Williams gave evidence that the deceased dropped the knife in the course of a physical struggle with the appellant. He said the knife fell to the ground and the appellant picked it up and stabbed the deceased. Defence counsel's cross-examination of Mr Williams reads, relevantly:

Then how long are they fighting for up to this point? From when [the deceased] pulls a knife out and they start fighting and you see the stabs. How long, how much time? Was it a short time or long time?---Very quick one.

Very quick one, okay. So [the deceased] has knife, she stab once, stab twice and the knife falls on the ground. Is that what you say?---Yeah.

And then [the appellant] pick it up straightaway and stab straightaway?---Yeah.

You're saying yes to that?---Yeah.

And all of that, that's stab 1, stab 2, knife down, pick up, all quick time?---Yeah.

Very quick? Yes?---Yes.

So [the appellant] did it straightaway?---Yeah (ts 110 - 111).

102 Defence counsel did not challenge Mr Williams' evidence that the deceased dropped the knife, the knife fell to the ground and the appellant picked it up. The cross-examination focused on the length of time the knife was on the ground before it was picked up.

103 How the deceased either relinquished possession or was dispossessed of the knife was a matter for the jury. The trial judge noted this point in his summing up on the issue of self-defence:

Whether or not the deceased was disarmed or dropped the knife is a matter for you (ts 212).

This direction immediately preceded his Honour's s 31A direction (ts 214 - 215).

104 Whether the appellant could have continued fighting with the deceased, after the deceased either relinquished possession or was dispossessed of the knife, without using a weapon, and whether the appellant could have walked away, were questions relevant to the jury's assessment of the reasonableness of the appellant's action for the purposes of self-defence.

105 It was admitted, on behalf of the appellant, that she held the knife when it caused the fatal wound to the deceased. By that admission the appellant necessarily accepted that, at some stage, she obtained possession of the knife.

106 The issue of central importance, for present purposes, was the appellant's state of mind when she used the knife to stab the deceased. His Honour emphasised, in his s 31A direction, that the Prior Conviction Evidence 'is relevant when it comes to assessing what her state of mind was when she used the knife' (ts 215). The Prior Conviction Evidence was probative of her state of mind at that time and not her state of mind at an earlier time (for example, when the deceased either relinquished possession or was dispossessed of the knife or, if Mr Williams' evidence was accepted, when the knife was on the ground).

107 The trial judge instructed the jury to take into account that the appellant was not the initial aggressor and that she was not the person who introduced the knife (ts 214). Also, his Honour, in the course of his s 31A direction, accurately summarised the defence case:

The defence say to you that the threat in this case was imminent, that the events were very fast and that it is inconceivable that a person who had shown no indications of jealousy or anger on that day, the day that these events happened, should suddenly stab the deceased, and they suggest to you that the circumstances are such that self-defence could not properly be excluded, and indeed are more consistent with it. That's a matter, of course, for you to determine when you consider all of the evidence (ts 215).

108 In my opinion, his Honour was not bound to direct the jury that it must be satisfied beyond reasonable doubt that the deceased had dropped the knife and the appellant had picked it up before the jury could use the Prior Conviction Evidence against the appellant. As I have mentioned, it was not in contest that, at some stage, the appellant acquired control of the knife and stabbed the deceased. The Prior Conviction Evidence was relevant to the appellant's state of mind when she used the knife against the deceased.

109 In my opinion, the trial judge adequately directed the jury as to the relevance of the Prior Conviction Evidence and how it may bear upon the issue of self-defence. He identified factors which could militate against the State's case as to what inferences should be drawn, on the basis of that evidence, in relation to self-defence (ts 214 - 215). His Honour's direction as to the manner in which the Prior Conviction Evidence could be used, in combination with his instruction that the jury could not reason that, because the appellant had these prior convictions, she was not on this occasion acting in self-defence, addressed adequately any relevant prejudice to the appellant occasioned by the admission of the evidence.

111 By s 30(3)(a) of the Criminal Appeals Act 2004 (WA), in the case of an appeal against conviction, the Court of Appeal must allow the appeal if, in its opinion, the verdict of guilty on which the conviction is based should be set aside because, having regard to the evidence, it is unreasonable or cannot be supported.

112 In M v The Queen [1994] HCA 63; (1994) 181 CLR 487, Mason CJ, Deane, Dawson and Toohey JJ said, in relation to s 6(1) of the Criminal Appeal Act 1912 (NSW) (which is in substance identical to s 30(3) of the Western Australian Criminal Appeals Act), that although the phrase 'unsafe and unsatisfactory' does not appear in the statutory provision:

Where a court of criminal appeal sets aside a verdict on the ground that it is unreasonable or cannot be supported having regard to the evidence, it frequently does so expressing its conclusion in terms of a verdict which is unsafe or unsatisfactory (492).

See also Jones v The Queen [1997] HCA 12; (1997) 191 CLR 439, 450.

113 In M, Mason CJ, Deane, Dawson and Toohey JJ held that the test for an unsafe or unsatisfactory verdict was whether the court thought that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty (493).

114 In answering that question, their Honours said:

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

115 Their Honours explained the application of the test:

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

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

116 In Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559, Hayne J (with whom Gleeson CJ & Heydon J relevantly agreed) said that where it is alleged that a conviction is unsafe or unsatisfactory, the question for an appellate court is:

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

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

117 It is a question of fact whether a conviction is unsafe or unsatisfactory. This court must decide the question by making its own independent assessment of the sufficiency and quality of the evidence. See SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400 [14] (French CJ, Gummow & Kiefel JJ).

118 Counsel for the appellant submitted that a finding that the appellant formed and acted out of jealous rage was not reasonably open on the evidence.

119 It was submitted that the jury, acting reasonably, could not have excluded as a rational inference that the appellant acted in self-defence.

120 The merits of ground 3 must be determined in the context of my conclusion, in relation to ground 1, that the Prior Conviction Evidence relating to the appellant's prior convictions for threatening or assaulting women other than the deceased was not admissible.

121 In my opinion, it was open to infer on the admissible evidence that, at the material time, the appellant's state of mind was as alleged by the State. I note the following:

(a) the evidence of Mr Williams as to the physical fight between the appellant and the deceased on 2 February 2011 in relation to him (ts 94);

(b) the evidence of Mr Williams as to conversations between the appellant and the deceased on 3 February 2011 in relation to him (ts 102);

(c) the evidence of Mr Williams that the appellant was 'drunk' and 'wild' immediately before the appellant and the deceased commenced the physical fight on 3 February 2011 (ts 103);

(d) the evidence of Deanne Achoo that on 3 February 2011 the appellant had attempted to throw a can of beer at the deceased (ts 81 - 82);

(e) the evidence of Ms Achoo that the appellant and the deceased were 'very angry' with each other before they began fighting physically on 3 February 2011 (ts 82);

(f) the evidence of Ms Charmawina that on 3 February 2011 the appellant and the deceased were 'fighting, jealous for husband' (ts 121);

(g) the evidence of Ms Charmawina that on 3 February 2011 the appellant and the deceased were 'talking to hurt one another' (ts 122);

(h) the evidence of Mavis Darkie that on 3 February 2011 the appellant and the deceased were 'arguing about' Mr Williams and who was with him first (ts 128);

(i) the evidence of Mavis Darkie to the effect that before they began fighting physically on 3 February 2011 the appellant told the deceased, 'if you going to stab me with that knife I will get after her' and 'I will stab you back' (ts 130 - 131);

(j) the evidence of Julie Darkie that on 3 February 2011 there was an argument between the appellant and the deceased concerning Mr Williams before they began fighting physically (ts 140), and the following exchange occurred between the women:

Again in English what did [the deceased] say?---She said, 'I'll stab you, [the appellant].'

What did [the appellant] say?---[The appellant] said, 'Yeah, you stab me first.'

That last thing that [the appellant] said, does that mean, 'If you're going to stab me, I'll stab you'?---Yes.

Did you see [the deceased] try to stab [the appellant]?---Yes (ts 143 - 144).

(k) the Prior Conviction Evidence relating to the appellant's prior convictions for assaulting the deceased.

122 It was open on the admissible evidence to conclude beyond reasonable doubt that the appellant did not act in self-defence. I refer, in particular, to the following:

(a) the evidence of Mr Williams that after the deceased had attempted to stab the appellant twice with the knife, the knife fell to the ground and the appellant picked it up very quickly and stabbed the deceased immediately (ts 110 - 111);

(b) the evidence of Ms Achoo, Ms Charmawina, Mavis Darkie and Julie Darkie that the appellant and the deceased were arguing about Mr Williams before the commencement of the physical fight;

(c) the evidence of Ms Achoo that the appellant had attempted to throw a can of beer at the deceased;

(d) the evidence of Mavis Darkie that she had difficulty removing the knife from the appellant's hand, after she had stabbed the deceased, because the appellant 'had it really tight' (ts 132);

(e) the evidence of Mavis Darkie and Julie Darkie as to the statements made by the appellant to the deceased before they began fighting physically;

(f) the evidence of Detective Senior Constable Bruce Bowers that he had the following conversation with the appellant:

In this case I actually said to the accused, 'This is serious. The lady has passed away,' and in response to that the accused said something back to me.

What did she say to you?---She said, 'I had a rip with her. She [was] pulling my hair. I stabbed her' (ts 176).

(g) the evidence of Constable Deborah Dicks as to the following conversation she had with the appellant:

Did she speak to you at about 9 pm?---Yes, she did. She said to me at 9 o'clock, 'This is the first I've ever been in trouble' and she said, 'That girl: is she awake?' and I said, 'No, she's not.' She then said, 'You know, I stabbed her with a knife' and I said, 'I don't know. Is that what happened?' and at that time I recautioned her that she didn't have to talk to me and tell me anything if she didn't want to.

Did she say anything else?---She went on to say, or to ask me, 'Did I stab her in the heart?' and I said, 'I don't know. Is that what happened?' She said, 'How long do I have to go to prison for?' and I answered her, 'You have to talk to the detectives first if you want to and then you might have to go to court and see what the judge says.'

What did she say?---She said, she asked me if that girl had some witnesses, and I said, 'I don't know. There was lots of people there.' She said, 'Yes, there were, but they never seen us when I stabbed her.' She went on to tell me about what she'd been doing during the day.

Did you ask her what she had been doing during the day?---No, she just started, she just kept talking.

What did she tell you she had been doing during the day?---She said, 'We had steak and onions for breakfast. We was drinking, cooked our breakfast on the barbie at the town beach with the girls' and she said, 'Before this thing happened we was right.'

Did you ask her what she meant by that?---I didn't ask her what she meant, but I took it to mean that her and [the deceased] were right, good friends, drinking.

Did you ask her anything else?---I said, 'Where were you drinking today?' and she said, 'Kennedy Hill this side', and she went on to say, 'Me and Daniel, we got kids. You know that girl I stabbed, she was living with my husband. I just came from Port Hedland. It's the first time I done this. That woman was living with my husband, Daniel Williams. When I was in Geraldton they was going on.' She said, 'This is the first time I've stabbed someone and I'm really frightened for doing that' and she asked me, 'You reckon for murdering I'm going to go to gaol for life?' and I said, 'I don't know. That's for the magistrate to decide.' She said, 'We was drinking and she came with a knife' (ts 170 - 171).

(h) the Prior Conviction Evidence relating to the appellant's prior convictions for assaulting the deceased, and the physical fight between the appellant and the deceased on 2 February 2011 concerning Mr Williams.

123 In my opinion, when all of the evidence relating to the issue of self-defence (after excluding the part of the Prior Conviction Evidence which relates to the appellant's prior convictions for threatening or assaulting women other than the deceased) is evaluated and weighed, it is plain that a tribunal of fact may properly be satisfied beyond reasonable doubt as to the appellant's guilt. The admissible evidence does not require the conclusion that a tribunal of fact must necessarily entertain a doubt about her guilt.

124 My review of the admissible evidence satisfies me that a finding that the appellant formed and acted out of jealous rage in stabbing the deceased is reasonably open on the evidence. I am also satisfied that, on the admissible evidence, any rational inference that the appellant acted in self-defence is reasonably capable of being excluded.

Should there be a re-trial or a judgment of acquittal?

126 In Dyers v The Queen [2002] HCA 45; (2002) 210 CLR 285, the High Court, by a majority (Gaudron, Kirby, Hayne & Callinan JJ; McHugh J dissenting), allowed the appellant's appeal against his conviction on a charge of indecently assaulting a 13-year-old girl. The majority was satisfied that the trial judge had misdirected the jury by giving a Jones v Dunkel direction (Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298). The appellant's conviction was quashed. The High Court dealt with the appellant's contention that the evidence led at his trial should have left the jury with a reasonable doubt as to his guilt. This contention was rejected. Of the majority, Gaudron, Hayne and Callinan JJ; Kirby J dissenting, ordered a re-trial.

It is, however, necessary to deal with the further contention of the appellant that the evidence led at his trial should have left the jury with a reasonable doubt as to his guilt. Substantially for the reasons given by Callinan J, that contention should be rejected.

In these circumstances, it would ordinarily follow that a new trial should be ordered, leaving it to the prosecuting authorities to decide whether to proceed with a new trial. In this case, however, the sentence imposed on the appellant has expired. The decision whether to continue a prosecution is ordinarily a decision for the executive, not the courts. There have, however, been cases where this Court has quashed a conviction, without either ordering a new trial or directing entry of a verdict of acquittal (see, eg, Callaghan v The Queen [1952] HCA 55; (1952) 87 CLR 115). To make an order that would preclude a new trial would constitute a judicial determination of the proceedings against the appellant otherwise than on trial by jury and in circumstances where it is not held that the evidence adduced at trial required the jury to acquit the appellant. That being so, there should be an order for a new trial despite it being probable that the prosecution will not proceed further [22] - [23].

128 Kirby J, in the course of his dissenting opinion on this issue, provided instances where the High Court, in allowing an appeal by an appellant/offender, has not ordered a re-trial [82] - [83].

129 In Anderson v The Queen (1991) 53 A Crim R 421, Gleeson CJ (Finlay J & Slattery AJ agreeing) said that the discretionary decision as to whether an appellate court should order a re-trial is to be made in the light of the principles enunciated in such cases as Reid v The Queen [1980] AC 343, 351 and Director of Public Prosecutions (Nauru) v Fowler [1984] HCA 48; (1984) 154 CLR 627. His Honour continued:

If, contrary to what appears above, I had been of the view that this was a case in which it was not reasonably open, on the evidence, for the jury to convict then, in accordance with the established principles, that would be an end of the matter. There would be no new trial. However, this is not such a case, and it becomes necessary to consider the various considerations for and against ordering a new trial.

The principal considerations in favour of ordering a new trial on each of the three counts in question are the public interest in the due prosecution and conviction of offenders, the serious nature of the alleged crimes, and the desirability, if possible, of having the guilt or innocence of the appellant finally determined by a jury which, according to the constitutional arrangements applicable in this State, is the appropriate body to make such a decision.

On the other hand there are considerations that militate against a new trial. The Crown case is not strong, and depends in large part upon the evidence of an accomplice whose account of the relevant facts has been demonstrated to be unreliable in significant respects. The suggested corroboration is, on analysis, flimsy. It is now more than 13 years since the relevant events took place, and this compounds the difficulty of establishing the truth. Moreover, it is far from clear exactly how the Crown would run a fresh trial ... Finally, there is a consideration which, in the circumstances of this particular case, I regard as compelling. The trial of the appellant miscarried principally because of an error which resulted

in large part from the failure of the prosecuting authorities adequately to check aspects of the Jayawardene theory. This was compounded by what I regard as an inappropriate and unfair attempt by the Crown to persuade the jury to draw inferences of fact, and accept argumentative suggestions, that were not properly open on the evidence and that were in some respects contrary to the evidence. I do not consider that in those circumstances the Crown should be given a further opportunity to patch up its case against the appellant. It has already made one attempt too many to do that, and I believe that, if that attempt had never been made, there is a strong likelihood that the appellant would have been acquitted (453).

The court therefore ordered a verdict of acquittal to be entered.

130 In R v Taufahema [2007] HCA 11; (2007) 228 CLR 232 [49], [51], Gummow, Hayne, Heydon and Crennan JJ cited, with apparent approval, the observations of Gleeson CJ in Anderson that an order for acquittal entered by an appellate court conflicts with:

(a) the public interest in the due prosecution and conviction of offenders; and

(b) the desirability, if possible, of having the guilt or innocence of the accused finally determined by a jury.

131 In the present case, the public interest in the due prosecution and conviction of offenders, the desirability of having the guilt or innocence of the appellant finally determined by a tribunal of fact, and the serious nature of the offence alleged against the appellant, require this court to order that there be a retrial. There are no factors of significance which militate against this outcome.

132 On 14 December 2011, the trial judge imposed a sentence of 2 years 9 months' immediate imprisonment. He backdated the sentence to 3 February 2011 and made a parole eligibility order. The fact that the appellant has served a significant part of this sentence does not, in the circumstances, either alone or in combination with any other factors, justify a departure from the usual outcome that a retrial be ordered.