FITZGERALD -v- THE STATE OF WESTERN AUSTRALIA [No 2] [2025] WASCA 99 (2 July 2025)

(1) It was not in dispute that the appellant was holding the sword and moving it around. It was not in dispute that he had said something to at least one of Mr Siafitu and Mr Meads about wanting at least one of their phones.

(2) Both Mr Siafitu and Mr Meads gave evidence that the appellant said words to the effect that he would cut off their heads if they did not give him their phones.

(3) Each of Mr Siafitu and Mr Meads gave evidence that was internally consistent and largely consistent with the evidence of the other. The cross‑examination did not damage the reliability or credibility of either man.

(4) Other witnesses gave evidence that was largely consistent with the evidence of Mr Siafitu and Mr Meads.

(5) The evidence of the appellant was implausible and does not give rise to a reasonable doubt.

1. With the exception of one irrelevant document, the additional evidence sought to be adduced by the appellant is new rather than fresh ‑ it was available to be led at trial by the appellant. Ordinarily, new evidence will only demonstrate a miscarriage of justice if it satisfies the appellate court that the appellant is innocent or should not have been convicted. The appellant has not met that high hurdle. Indeed, much of the proposed additional evidence has no probative value.

1. The defence did not challenge the evidence as to where the various parties lived and how Mr Siafitu, Mr Meads and Ms Bar‑Noy came to be in the vicinity of Mr Austen's unit.
2. Mr Austen lived in a block of flats on Elinor Place. His unit was directly below the appellant's unit. Ms Bar‑Noy lived on Malvolio Road. Elinor Place runs between Malvolio Road and Rinaldo Crescent. On the day of the incident, Mr Siafitu and Mr Meads were helping Ms Bar‑Noy in her garden. Another person, Raymond Cole, was standing around the corner from Mr Austen's unit, on Malvolio Road, and saw some of the events.

1. The State called five lay witnesses ‑ Mr Austen, Mr Siafitu, Mr Meads, Ms Bar‑Noy and Mr Cole. Their evidence was as follows.

1. Mr Austen said that the appellant had lived upstairs from him for nearly two years.[3]
2. On the day of the incident, 5 October 2021, Mr Austen was sitting in his lounge room playing a game on his phone when he heard the sliding glass door of his unit crash as it shattered behind him.[4]
3. The appellant came in holding a samurai sword, threatening Mr Austen and demanding that Mr Austen '[g]ive [him] the drugs'.[5] Mr Austen asked him, 'What drugs'.[6]
4. The appellant came towards Mr Austen. Mr Austen stood up, ran into his bedroom, closed the door, and held it shut. While Mr Austen was holding the door shut, the samurai sword came through the door. The sword came through repeatedly, each time getting closer to Mr Austen.[7] On the last occasion, the door collapsed. Both Mr Austen and the appellant fell down.[8] Mr Austen got up and escaped his unit through the shattered sliding glass door. He went to Ms Bar‑Noy's home. Ms Bar‑Noy is the 'Jewish grandmother [Mr Austen does not] have'.[9] Ms Bar‑Noy was with two male backpackers.
5. Ms Bar‑Noy and the two men went with Mr Austen towards his unit. The two men approached the unit. Ms Bar‑Noy was standing on the street close to Mr Austen's unit. Mr Austen went close to his unit to see what the two men were doing. The appellant was still inside Mr Austen's unit at this time, and Mr Austen felt scared. He turned around and went back to where Ms Bar‑Noy was standing and waited there.[10]
6. In cross‑examination, defence counsel explored the relationship between Mr Austen and the appellant. Mr Austen denied that they were friends. He said that the appellant had been in his home on several occasions. He said that there were two or three occasions when Mr Austen invited the appellant in, but the appellant would, most of the time, go into Mr Austen's unit without an invitation.[11]
7. Mr Austen said that he never really felt comfortable when the appellant was in his unit because the appellant was taller and stronger than him.[12] He also did not ever feel that he could deny the appellant anything because that was the 'sort of guy he was'.[13] Mr Austen said that the appellant had repeatedly taken his possessions, including two pushbikes.[14] Mr Austen did recall one occasion when the appellant had helped him by getting unwelcome visitors out of Mr Austen's unit. Mr Austen said that the appellant had realised that Mr Austen was uncomfortable and wanted the visitors to leave without Mr Austen having to say anything.[15]

1. On 5 October 2021, Mr Siafitu and Mr Meads were gardening in Ms Bar‑Noy's backyard as community service.[16]
2. Mr Siafitu heard a man calling for help from the front of Ms Bar‑Noy's house.[17]
3. He, Mr Meads and Ms Bar‑Noy went to the front yard to talk to the man, who asked them to go with him. The three of them followed the man to his unit.[18]
4. When they got to his unit, Mr Siafitu saw that the sliding glass door to the man's apartment unit was smashed in. A dog was trying to get through the door, but was struggling because the door was smashed.[19]
5. Mr Siafitu went to help the dog get through the door because there was glass around it. He did not know that there was someone inside the apartment unit.[20] Mr Siafitu was slightly in front of Mr Meads as they approached the smashed door of the unit.[21]
6. As Mr Siafitu approached the dog, a man came out of the unit with a sword.[22] At that time, Mr Siafitu was concentrating on the dog and the man with the sword, and did not know where Mr Meads was at that moment.[23]
7. The man with the sword was approximately 1.5 m away from Mr Siafitu.[24] Mr Siafitu started to back away. The man with the sword was approaching towards Mr Siafitu and Mr Meads, waving the sword around and making slashing motions. The man was telling them to give him their phones or he would do some damage to them with the sword.[25] The man said in a threatening way, 'I'll cut your heads off if you don't give me your phones.'[26]
8. They did not give the man their phones.[27] As the man approached them, they continued to back away to the point that the man started to jog a little bit, so Mr Siafitu started to jog away. Once Mr Siafitu was far enough away from the man, he pulled out his phone to call the police.[28]
9. Mr Siafitu agreed that, at one point, the man said that he could see that Mr Siafitu had a phone in his pocket.[29]
10. Ms Bar‑Noy was not with Mr Siafitu and Mr Meads when the appellant threatened them. Mr Siafitu did not know where she was, but thought she might have stopped at the corner, 10 m from the unit, on their way from her house to the unit.[30]
11. There was one aspect of Mr Siafitu's evidence in cross‑examination that was unclear.
12. It was put to Mr Siafitu that the man had said, 'What the fuck are you doing? Either lend me your phone or fuck off'. Mr Siafitu denied that.[31] It was put to Mr Siafitu that the man was asking for his phone. Mr Siafitu denied that and said that the man was demanding it.[32] This exchange then occurred:[33]

He only asked you for the phone once?‑‑‑He demanded multiple times.

Well, you haven't given that evidence previously. Have you? You've never told us before that he demanded the phone multiple times. Have you?‑‑‑I'm not sure. I just assumed that him threatening us for the phone was insinuative.

He asked you for the phone. Do you agree with that?‑‑‑Yes.

He asked you once?‑‑‑Yes.

You didn't give him the phone?‑‑‑True.

He said, 'I can see you've got a phone in your pocket'?‑‑‑True.

And you then left?‑‑‑After he continued to pursue us.

All right. When you mean continued to pursue you, you're backing back and you're saying he's coming towards you?‑‑‑Yep.

1. As shown by this exchange, Mr Siafitu agreed that the man only asked for the phone once, despite his evidence that the man had demanded his phone multiple times. There are several possibilities.
2. One possibility is that the man only made the oral threat and demand once, but that Mr Siafitu interpreted the man's conduct of continuing to approach them as they backed away, and waving the sword at them, as being continuing, multiple, demands.
3. Another possibility is that Mr Siafitu was agreeing that, at that specific moment of the incident, the man demanded Mr Siafitu's phone once.
4. It does not matter. The lack of clarity in this single exchange does not reflect on Mr Siafitu's credibility and reliability as a witness. Whatever Mr Siafitu meant does not affect his clear evidence that the appellant had said, in a threatening way, 'I'll cut your heads off if you don't give me your phones'.

1. Mr Meads described the start of the incident in similar terms to Mr Siafitu.
2. Mr Meads said that he, Mr Siafitu and Ms Bar‑Noy were standing next to each other when he saw a man inside the unit.[34] In cross‑examination, Mr Meads said he did not get closer than 4 m away from the back of the unit. He said that he recalled that both Mr Siafitu and Ms Bar‑Noy were behind him at that point, but he could not remember where they were.[35]
3. The man came out of the unit holding a sword. The man pointed the sword at them and told them to back away.[36] When the man first came out, he was pointing the sword at Mr Siafitu.[37]
4. The three of them backed away to the street that was behind them. The man followed them, pointing the sword towards them. He said things like 'Hand me your phones or I'll cut your head off', while swinging the sword from left to right. At this point, the man was 3 m away from them.[38] Mr Siafitu said he did not have a phone.[39] Mr Meads did not give the man his phone because he did not have a phone with him.[40]
5. In cross‑examination, Mr Meads said he did not recall the man saying to them 'What the fuck are you doing? Fuck off. Either lend me your phone or fuck off', but he accepted that it was a possibility.[41] In re‑examination, Mr Meads said that the words he remembered the man using were 'Hand me your phone', which were said in an aggressive tone. He said he did not recall the man saying 'lend'.[42]
6. Mr Meads continued to back away to the street behind him. At this point, Mr Siafitu was across the street, towards the left. Mr Meads said that he recalled that Ms Bar‑Noy was in the opposite direction, quite a bit away from them. At this point, the man was following Mr Siafitu, while still swinging the sword.[43]
7. Mr Meads gave evidence after Ms Bar‑Noy. He disagreed, in effect, with Ms Bar‑Noy's evidence about where he and Mr Siafitu had been at various times.[44]

1. Ms Bar‑Noy said that Mr Siafitu and Mr Meads are two young Mormon missionary boys who help her in her garden. They come once a week, help her for a couple of hours, and then talk about God.[45]
2. Ms Bar‑Noy described the start of the incident in similar terms to Mr Siafitu and Mr Meads, up to the point they were approaching the unit. Ms Bar‑Noy's description of where the three of them were located at various times was inconsistent with the evidence of Mr Siafitu and Mr Meads. Further, to the limited extent that Mr Austen gave evidence about their locations, and to the limited extent that the bystander Mr Cole saw the events, their evidence was consistent with the evidence of Mr Siafitu and Mr Meads, not Ms Bar‑Noy's.
3. Ms Bar‑Noy went with the two young men to Mr Austen's unit.[46]
4. Mr Austen's dog Penelope was inside Mr Austen's unit. Ms Bar‑Noy called the dog to try to get her to come out.[47] She saw someone inside holding a Japanese sword and recognised that it was the appellant.[48] At this point, the two young men were behind her on Malvolio Road,[49] or very close to Malvolio Road.[50] She 'didn't really put [sic] attention to where they [were] directly but they were behind [her] so they ‑ they probably will be just very close to Malvolio Road.'[51]
5. The two young men were at the corner of Malvolio Road and Elinor Place.[52] They did not come close to her. She did not know if they stayed in that position. She said, 'I really didn't ‑ really particularly look where they basically stationed. All I was worried [sic] to get into that apartment and get the dog away and they follow me. Now, exactly where they sit I can't tell you but [it] is in this vicinity', indicating the corner of Malvolio Road and Elinor Place.[53]
6. The appellant came out of the unit and was swearing a lot and waving the sword around.[54] Ms Bar‑Noy told the appellant that she was going to call the police. The appellant told her not to call the police because it was none of her business.[55] In cross‑examination, this exchange occurred:[56]

And that was the full extent of the conversation?‑‑‑Yes, he swear [sic] a lot and we were very worried, I worried about the young men, I worried about Toby, I worried about the dog. Too many things I was worried [about] in the moment and I didn't think to listen to other things except just get us saved, all of us, because I wasn't really sure what [the appellant] will do (indistinct) condition.

...

I was really worried what he's about to do with [the sword] and I just back away from him as far as I can, just for my own safety.

1. Ms Bar‑Noy slowly backed away from the appellant towards Rinaldo Crescent with her back to the road, as she was not sure what the appellant was going to do.[57]
2. The two young men were on Malvolio Road. The appellant went towards the two men, and they backed off to Malvolio Road, towards the bush.[58]
3. Ms Bar‑Noy called to the two young men. The appellant saw that he was standing between the two men and Ms Bar‑Noy. The appellant went towards the park at Elinor Reserve.[59] Elinor Reserve abuts one side of the entire length of Elinor Place, from Rinaldo Crescent to Malvolio Road.[60]

1. Mr Cole was standing outside a friend's house on 5 October 2021 when he heard a dog barking and a distressed person yelling.[61] His friend's house was on Malvolio Road, about 20 ‑ 25 m from its intersection with Elinor Place.[62]
2. Mr Cole saw a man, who he later heard was called Toby, running towards him and his friend, yelling for the safety of his dog. Toby ran past them, towards the house of a woman Toby knew. The woman's house was a couple of houses away from Mr Cole's friend's house. Toby then returned with the woman and two young volunteers who were doing some work at her place. The four of them went past where Mr Cole and his friend were standing on the footpath, and went towards Toby's unit. Toby's unit was around the corner from where Mr Cole was standing, so he could not see what happened when the four went around the corner.[63]
3. The four then came back around the corner, back into view. They were running from a man who had a sword in his hand. The woman came into view first, then the two volunteers, and then the man with the sword.[64] Mr Cole's evidence was unclear as to when Mr Austen came back into view.[65]
4. The man was holding the sword in an upright position and was making threats to kill the two volunteers. The man said, 'I'm going to get you bastards, and I'll ... kill you' with a few swear words. The man was raising the sword up and down, and in a slashing gesture towards the two young men.[66]
5. At this point, the woman was still closer to Mr Cole than the two volunteers (and the man with the sword).[67]
6. After threatening the two volunteers, the man turned to the woman and threatened her as well. The man said something to the effect of 'I'll kill you too'. The man was also again making the same slashing motions with the sword as he had made towards the two volunteers.[68]
7. The man with the sword then chased the two volunteers. They retreated further up Malvolio Road, about 80 m. The man with the sword chased them and was still waving the sword in a threatening manner and making verbal threats. The two volunteers split up and the man with the sword went after the one on the right. As the man with the sword got to a group of houses, he peeled off and went out of Mr Cole's sight.[69]

1. The appellant's evidence at trial was as follows.
2. The appellant and Mr Austen were friends and, as of 5 October 2021, there were no difficulties or issues with his relationship with Mr Austen, although Mr Austen did sometimes have mental health episodes where he needed his own space.[70]
3. People who lived in another unit of the apartment block had repeatedly assaulted the appellant and smashed up his unit. This occurred nearly every day.[71]
4. The appellant had been knocked unconscious by an assault on the morning of the incident. When he regained consciousness, he heard Mr Austen yelling and screaming. He went over the road to get his samurai sword (which was kept in another person's home) and then banged on the glass part of Mr Austen's door because he was concerned about Mr Austen's welfare. The glass shattered.[72]
5. He went inside and unsheathed his sword. He stepped back outside, but only a few steps. He was not going to go all the way outside and maybe confront somebody with his sword, because that would mean he might have to use the sword.[73] He could not see anyone outside, so he went back into Mr Austen's unit.[74]
6. He did not see Mr Austen, but could still hear Mr Austen yelling and screaming. He heard a door shut loudly and the noise of Mr Austen yelling and screaming coming from behind the door.[75]
7. The appellant tried to 'hip and shoulder' the door open and tried to push it open, but failed. He then slowly 'poked' the sword through and down the door, and went from side to side with the sword.[76] The sword was an ornament, and was 'very, very blunt' and 'flimsy'. The sword was grabbed from the other side and pulled back, so that nearly the entire sword went through the door. The appellant grabbed the sword and continued to kick the door until it broke. He then saw that Mr Austen was alone in the room, which was a shock. Mr Austen left.
8. The appellant was able to put the sword through the door '[p]retty easily' because it was a soft door, and he put some of his weight behind it to get it through the door. The appellant only pushed the samurai sword through the door once because it was a 'very, very dangerous move to do'.[77]
9. After Toby left, the appellant thought 'Fuck it. I'll go to work. I'll make an appearance and take it from there. I'll take the day from there'.[78]
10. The appellant then grabbed what he thought was his 'workbag', a bag that Mr Austen had given him because he had 'lined up a job'. The bag he picked up was Mr Austen's bag.[79]
11. The appellant saw 'one of the boys' crouching down and slowly easing himself into Mr Austen's unit through the smashed glass. The appellant immediately told him to 'Get the fuck out'.[80]
12. The boy left and the appellant was right behind him. The dog also went outside.[81]
13. The appellant saw Ms Bar‑Noy on his right with her back turned towards him. The appellant asked Ms Bar‑Noy if he could borrow her phone. When she turned around, she was talking on the phone, and she looked straight at him. The appellant assumed that she was on the phone to the police. The appellant told Ms Bar‑Noy to let the police know his name was Marcus Fitzgerald and that he would call them later.[82]
14. As the appellant turned to walk away, he noticed that one of the boys was sneaking up behind him. The appellant thought the boy meant him harm, so asked the boy what he was doing and told him to 'Fuck off'.[83]
15. (The appellant was then asked by his counsel if he had asked the boy anything.) The appellant asked the boy if he could borrow his phone. When the boy said 'No', the appellant said 'I can see it in your pocket. Lend me your phone or fuck off'. The boy just kept walking.
16. The samurai sword was in the appellant's hand during this conversation. He may have waved it once or twice when he threatened the boy but that was just to intimidate him to get him to move along. The boy had already snuck up on him when the appellant was in Mr Austen's unit and when the appellant was talking to Ms Bar‑Noy.[84]
17. The appellant followed the boy for probably 2 ‑ 3 m and then he spun around and crossed the road into the park. He saw some people hanging around outside their units, so he again spun around and went down the fence line.[85]
18. The appellant swears a lot, and he was frustrated because, not only was he a victim of an assault, but he had also asked to borrow somebody's phone to ring the police.[86] He did not make the threat to kill those young boys in particular but 'the African mob in general' (being his alleged regular assailants).[87]
19. He did not wish to harm anyone, but he did intimidate people to avoid confrontation. He intended on intimidating them to send them on their way without any fighting.[88]
20. The appellant did not demand that the boy give him the phone. He said to the boy, 'If you're not going to give me your phone, fuck off'. He was waving the sword at the boy because the boy was stepping closer to him.[89]
21. The appellant wanted the phone to ring the police, and intended to return it. He had left his own phone in his father's car a day or two earlier. He did not persist in trying to get the phone off the boy.[90]
22. The appellant wanted to call the police because he wanted to let them know what he did and how he woke up in the morning.[91] He knew that he was in trouble, especially because he had scared Toby even more.[92]
23. He did not ask either boy to call the police because they were too busy trying to sneak up behind him.[93]
24. After he left the scene, the appellant went to buy something to eat and then caught a bus to Fremantle.
25. CCTV footage from the bus captured the appellant speaking to another man on the bus, and gesticulating as if he was holding an object, with a forward stabbing motion, and saying 'Bang'. The footage shows him then gesticulating with a sideways slashing motion, and saying 'Boom'. He is heard to say 'You should see Toby ‑ there's not much left of that fat cunt'. In his evidence, the appellant said the morning of 5 October 2021 had been traumatic.[94] He was 'pissed off' at himself, at the African people running around, getting snuck up on after being assaulted and at Toby calling for help, which was Toby having another episode.[95] The appellant said he should have said 'There's not much left of the door' but he was trying to talk himself up.[96] He was really 'pissed off' with Toby for making the appellant go to Toby's rescue. Instead of saying 'the door', he said 'Toby' to make it sound cool. He was showing off to people who did not like Toby.[97]
26. While on the bus, the appellant borrowed a phone from a person named Clarissa to call his father. He gave the phone back to Clarissa straightaway and thanked her for lending him her phone.[98] He did not use the phone to call the police because[99]

[t]hey're not the type of people that will let me use a phone to ring the police. Toby's safe. I'm safe. Everyone else is safe. There's no ‑ police have already been called. I've already said my name's Marcus Fitzgerald and I'll call them later. I had better things to do, and that was to try and relax and go to work. At least make an appearance.

1. Mr Fitzgerald had been on anti‑depressants and mood stabilisers. However, he was not taking his medication in the two weeks leading up to 5 October 2021 because his house got trashed a couple of weeks before and he was not able to keep anything at his house. Not taking his medication affected his mental health, which affected every aspect of his life.[100] On the day of the incident, his head was all over the place. He did not feel like himself, or even a shadow of himself, in the way that he was acting or talking.[101]
2. The defence also called the appellant's father to give evidence. The appellant's father said that his son had called him between midnight and 2.00 am on 3 October 2021 (two days before the incident) to say he needed to be rescued from where he was living. The appellant's father went to his son's unit that morning and it had been ransacked.[102]
3. The appellant's father also said that, a few days before that, his son had left his phone in the appellant's father's car, but the appellant's father had not been able to find it.[103]
4. In closing, defence counsel did not really argue that the jury should acquit the appellant of counts 1 and 2. In relation to counts 3 and 4, defence counsel contended that the State had not proved that the appellant intended to steal the phones.

1. The sole ground of appeal alleges that the verdicts of guilty on which the convictions are based should be set aside because, having regard to the evidence (including fresh evidence that did not exist, was not disclosed, and was not available at the time of the trial) the verdicts are unreasonable and cannot be supported.

1. The appeal notice was filed five months out of time. The delay was largely due to the appellant's attempts to obtain a grant of legal aid. The appeal notice was filed relatively promptly following the refusal of the grant of legal aid. If there is merit in the appeal, we would grant an extension of time.

1. The legal principles applicable where it is contended that a verdict is unreasonable or cannot be supported were recently set out by this court in Sandy v The State of Western Australia.[104] Those principles can be summarised as follows:[105]
   1. It is a question of fact whether, having regard to the evidence, a verdict of guilty on which a conviction is based is unreasonable or cannot be supported.
   2. An appellate court must decide that question by making its own independent assessment of the sufficiency and quality of the evidence, and determining whether, notwithstanding that there is evidence upon which a tribunal of fact might convict, nevertheless it would be dangerous in all the circumstances to permit the verdict to stand.
   3. The appellate court, in making an independent assessment of the whole of the evidence to determine whether it was open to the tribunal of fact to be satisfied beyond reasonable doubt as to the guilt of the accused, must weigh the whole of the evidence (in particular, the competing evidence).
   4. The appellate court's task is not to consider, as a question of law, merely whether there was sufficient evidence to sustain a conviction.
   5. The appellate court, in assessing whether it was open to the tribunal of fact to be satisfied beyond reasonable doubt as to the guilt of the accused, 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.
   6. The appellate court's function is to determine for itself whether the evidence at trial was sufficient in nature and quality to remove any reasonable doubt that the accused was guilty of the offence charged. The critical issue is whether the court's assessment of the totality of the evidence leaves the court with a reasonable doubt as to guilt, which the court cannot assuage by having regard to such advantage as the jury can be taken to have had by reason of having seen and heard the evidence at trial.
   7. The appellate court examines the trial record to ascertain whether, despite the jury's advantage in having seen and heard the witnesses in the context of the trial, the jury, acting rationally, should have entertained a reasonable doubt as to proof of guilt.
   8. The ultimate question for the appellate court must always be whether the appellate 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.
   9. The setting aside of a jury's verdict of guilty because, having regard to the evidence, it is unreasonable or cannot be supported is a serious step. Trial by the appellate court is not to be substituted for trial by jury.
   10. The appellate court's reasons must disclose its assessment of the capacity of the evidence to support the verdict.
   11. The nature and extent of the appellate court's task, in a particular case, will be informed by the elements of the offence, the accused's defence, the issues in contest at the trial, the manner in which the trial was conducted, the way in which the case was ultimately left to the jury, and the particulars of the ground of appeal.
2. The question for the appellate court is whether, upon its examination of the record, by reason of inconsistencies, discrepancies or other inadequacies, or in light of other evidence, the court is satisfied that the jury, acting rationally, ought to have entertained a reasonable doubt as to guilt. Differently framed, the central question is whether the assessment of the totality of the evidence leaves the court with a reasonable doubt as to guilt, which cannot be assuaged by the reference to the advantages enjoyed by the jury of having seen and heard the evidence at trial.[106]

1. The appellant contends that the jury should have had a reasonable doubt as to his guilt of counts 3 and 4 because:
   1. the jury should have rejected the evidence of Mr Siafitu and Mr Meads to the effect that the appellant had threatened to cut off their heads if they did not give him their phones, because their evidence was internally inconsistent, unreliable, and inconsistent with the evidence of other witnesses (including his own evidence);
   2. the jury should not have been satisfied beyond reasonable doubt that the appellant made a threat to Mr Siafitu and Mr Meads with the intention of stealing their phones for various reasons;
   3. the appellant was acting in self‑defence; and
   4. a threat must be accompanied by a bodily act or gesture.
2. Before discussing the additional evidence that the appellant seeks to adduce, we will deal with the evidence adduced at trial.

The jury was entitled to accept the evidence of Mr Siafitu and Mr Meads

1. In our view, it was well open to the jury to accept the evidence of Mr Siafitu and Mr Meads to the effect that the appellant had threatened to cut off their heads if they did not give him their phones.

The appellant's mischaracterisation of the evidence

1. The appellant's submissions and his Consolidated Practice Directions PD 7.4 evidence schedule make numerous inaccurate statements about the evidence. It is unnecessary to deal with each inaccuracy. The summary of the State case above sets out the true position. We will address below only what seem to be the appellant's main assertions.
2. First, the appellant asserts that the evidence from the State witnesses was that he had only asked once for Mr Siafitu's phone, and was not moving the sword at the time, and had never asked Mr Meads for a phone.[107]
3. This is inaccurate.
4. Both Mr Siafitu and Mr Meads gave evidence that the appellant had told them to give him their phones (plural).
5. Mr Siafitu's evidence was that the man with the sword was approaching both himself and Mr Meads, waving the sword around and making slashing motions. The man was telling them to give him their phones or he would do some damage to them with the sword.[108] The man said, in a threatening way, 'I'll cut your heads off if you don't give me your phones'.[109] Mr Meads's evidence was that the man followed him and Mr Siafitu, pointing the sword towards them. The man said things like 'Hand me your phones or I'll cut your head off', while swinging the sword from left to right.[110]
6. As for the other State witnesses, none of them gave evidence that there had been only a single demand or request for Mr Siafitu's phone and no demand for Mr Meads's phone.
7. Ms Bar‑Noy's evidence was to the effect that she was not listening to what the appellant was saying because she was worried for her safety and the safety of the two young men and that, after she had backed away towards the street, she could not hear what the appellant was saying.[111]
8. Mr Austen did not give evidence of anything said by the appellant.
9. Mr Cole gave evidence of the appellant threatening to kill the young men after the four of them came back into his view.
10. Given that the appellant admits at least asking for Mr Siafitu's phone, the fact that none of these three witnesses gave evidence of any demand or request for any phone is consistent with them simply not hearing (or remembering) what the appellant said about phones.
11. Second, and related to the first point, the appellant alleges that Mr Siafitu had only assumed that the man had asked for his phone multiple times. Here, the appellant relies on Mr Siafitu's answer to the proposition that he had not previously said that the man had demanded his phone multiple times. The full extract is set out above, but Mr Siafitu's answer was, 'I'm not sure. I just assumed that him threatening us for the phone was insinuative'.
12. We do not accept that Mr Siafitu was saying that he had only assumed that the man had demanded his phone multiple times. In saying that he had assumed that the man 'threatening us for the phone was insinuative', Mr Siafitu appeared to be saying that he had assumed that it would be obvious from his evidence that the man had demanded his phone multiple times, whether orally or by his continuing threatening conduct.
13. Third, the appellant asserts that the State witnesses agreed that he had asked if they would 'lend' him their phones.
14. This is inaccurate.
15. Mr Siafitu's evidence was that the man said, in a threatening way, 'I'll cut your heads off if you don't give me your phones'. Mr Siafitu denied that the man had asked Mr Siafitu to lend the man Mr Siafitu's phone. He denied that the appellant was 'asking' for his phone. Mr Siafitu said that the man was demanding it.
16. Mr Meads's evidence was that the man said things like 'Hand me your phones or I'll cut your head off', while swinging the sword from left to right. In cross‑examination, Mr Meads said he did not recall the man saying 'What the fuck are you doing? Fuck off. Either lend me your phone or fuck off', but he accepted that it was a possibility.[112] In re‑examination, Mr Meads said he did not recall the man saying 'lend'. He said that the words he remembered the man using were 'hand me' your phone, in an aggressive tone.
17. In the context of his evidence as a whole, Mr Meads's acceptance of the 'possibility' that the man had used the word 'lend' was not evidence that the word had been used. Nor did his acceptance detract from Mr Meads's evidence as to what he did remember being said. What Mr Meads did remember was the man saying 'Hand me your phones or I'll cut your head off', while swinging the sword from left to right.
18. Fourth, the appellant submits that Mr Siafitu's evidence was that he knew the threats were fanciful.[113] He asserts that Mr Siafitu said in evidence that the appellant 'would never, he won't kill us', citing primary court transcript, page 114. This assertion takes the evidence out of context. The relevant exchange was:[114]

And this man never at any stage said that he would kill you if you didn't hand over your phone?‑‑‑He did say he would chop off our heads.

So I think - do you agree he never said he would kill you, but he said he - he would chop off your heads?‑‑‑Do I agree that that's what he said? He said ‑ ‑ ‑

Yes? - ‑ ‑ ‑ he would never - he won't kill us? Yes.

I'll just clarify that. Your - your evidence is that he said, 'I'll chop off your heads.' Is that right?‑‑‑Yep.

And do you agree he never said, 'I'll kill you'?‑‑‑True. Those specific words.

All right. And what - what I want to suggest to you is that he - he never said he'd chop off your heads?‑‑‑That's what you're suggesting he said?

Yes?‑‑‑No.

What I'm saying to you is he never said he would chop off your head?‑‑‑Okay.

What's your response?‑‑‑My response is that he did say that.

1. In using the words 'he would never ‑ he won't kill us', Mr Siafitu was plainly clarifying the question he had been asked. Mr Siafitu was asking whether defence counsel was asking him if he agreed that the man never said he would kill them, but instead said he would chop off their heads. When defence counsel confirmed that was the question, Mr Siafitu agreed that the man had not used the specific words 'I'll kill you', but had said he would chop off their heads.

Inconsistencies in the evidence of the State witnesses

1. Separately to the appellant's assertions, it is necessary to consider the probative force of the evidence adduced at trial.
2. There were some inconsistencies in the evidence of the eyewitnesses called by the State. Given the nature of the incident, some inconsistencies are to be expected. Each witness was giving evidence, from their own perspective, about a brief and frightening event 17 months earlier.

1. The only inconsistency of any significance was the evidence as to the location of Ms Bar‑Noy, Mr Siafitu and Mr Meads during the incident. Mr Siafitu and Mr Meads's evidence differed significantly from Ms Bar‑Noy as to where they were, and where Ms Bar‑Noy was. To the extent that Mr Austen and Mr Cole were able to add to the picture, their evidence as to locations was broadly consistent with the evidence of Mr Siafitu and Mr Meads.
2. Ms Bar‑Noy made it clear in her evidence that she was worried about what might happen and was not focussing on where the two young men were. The difference between her evidence and the evidence of the other witnesses as to where the four of them were located would not have given rise to a reasonable doubt as to the appellant's guilt on counts 3 and 4. Even the appellant's version placed at least one of the young men close to the unit, and he accepted that he interacted with at least one of the men in relation to a phone. Plainly, Ms Bar‑Noy's evidence as to where they were located was inaccurate.
3. Mr Siafitu and Mr Meads's evidence also differed slightly from one another, as to which of them was in front of the other when the appellant came out of Mr Austen's unit. As it is to be expected that each would have been focussing on himself, this difference was immaterial.

1. There were differences as to what each witness heard. In our view, these differences were not because one witness was contradicting the evidence of another. Rather, the differences arose from the location of each witness, what each was able to and did hear, and what each could remember.
2. The appellant admits making threats to kill[115] (and indeed during the appeal hearing he admitted saying to Mr Siafitu and Mr Meads that he would cut their heads off[116]). He denies, however, making threats in the context of demanding a phone.
3. Both Mr Siafitu and Mr Meads gave evidence as to the threats made by the appellant, to the same effect. Mr Siafitu said that the appellant had said, 'I'll cut your heads off if you don't give me your phones'. Mr Meads said the man said, 'Hand me your phones or I'll cut your head off'.
4. Ms Bar‑Noy said the appellant had told her not to call the police because it was none of her business. She said she heard the appellant swearing a lot, but was not listening to what he was saying. Mr Austen did not give evidence about anything the appellant said. Given that the appellant admits making threats, Mr Austen and Ms Bar‑Noy's inability to give evidence about any threats does not detract from the evidence of Mr Siafitu and Mr Meads.
5. Mr Cole said that, when the two volunteers came back around the corner, the man with the sword followed them. Mr Cole said that the man with the sword had said to the volunteers 'I'm going to get you bastards, and I'll kill you' with a few swear words, and had then threatened the woman. He said that the man continued to chase the volunteers up Malvolio Road, still waving the sword in a threatening manner and making verbal threats.
6. Mr Cole was around the corner from Mr Austen's unit and did not give any evidence of what had occurred before they came back around the corner, being chased by the appellant. Further, Mr Cole did not give evidence as to what threats the appellant had made when continuing to chase the volunteers up Malvolio Road. His evidence is therefore not inconsistent with the evidence of Mr Siafitu and Mr Meads.

1. The appellant's evidence was implausible.
2. First, the appellant claimed in his evidence that he wanted to borrow a phone to call the police. However, his evidence was that the first thing he saw when he left Mr Austen's unit was Ms Bar‑Noy already on the phone and he assumed she was speaking to the police. He said he told her to tell them that his name was Marcus Fitzgerald and that he would call them 'later'.
3. Second, he claimed that he thought Mr Siafitu and Mr Meads intended to harm him and that is why he was behaving in a threatening manner towards them - so that they would back away and not attack him. However, his evidence was that, at the same time he claims he was trying to get them to back away, he sought to borrow a phone from them. If either of the young men had lent him a phone, his claimed goal of getting them to back away would have been defeated.
4. Third, his evidence that the young men continued to approach him after he had waved the sword at them was inherently implausible and was not supported by other witnesses.

The probative force of the evidence adduced at trial

1. It was not in dispute that the appellant was holding the sword and moving it around. It was not in dispute that he had said something to at least one of Mr Siafitu and Mr Meads about wanting at least one of their phones.
2. Both Mr Siafitu and Mr Meads gave evidence that the appellant had said words to the effect that he would cut off their heads if they did not give him their phones, while moving the sword.
3. Each of Mr Siafitu and Mr Meads gave evidence that was internally consistent and largely consistent with the evidence of the other. The cross‑examination did not damage the reliability and credibility of either man.
4. Other witnesses gave evidence that was largely consistent with the evidence of Mr Siafitu and Mr Meads. The only material difference was Ms Bar‑Noy's evidence as to where she, Mr Siafitu and Mr Meads were at various times in relation to Mr Austen's unit and the appellant. To the extent that Mr Austen and Mr Cole gave evidence as to the location of Ms Bar‑Noy, Mr Siafitu and Mr Meads, their evidence was largely consistent with the evidence of Mr Siafitu and Mr Meads and inconsistent with Ms Bar‑Noy's evidence.
5. The evidence of the appellant was implausible and does not give rise to a reasonable doubt.
6. It was well open to the jury to be satisfied beyond reasonable doubt that the appellant had threatened to cut off the heads of Mr Siafitu and Mr Meads if they did not give him their phones.

The jury was entitled to be satisfied the appellant intended to steal the phones

1. The appellant contends that the jury could not have been satisfied beyond reasonable doubt that he made the threat with the intention of stealing Mr Siafitu and Mr Meads's phones for various reasons.
2. In our view, it was well open to the jury to be satisfied of this.
3. The appellant's submissions advanced numerous reasons why the jury should have not been satisfied beyond reasonable doubt that the appellant intended to steal the phones.
4. First, the appellant asserts, in effect, that, if he was the sort of person who would steal someone's phone, he would have stolen something easier to make use of (rather than a phone which needs a pin code, fingerprints or facial recognition),[117] he would have robbed the shop he went to later that day,[118] and he would not have returned phones that had been lent to him on other occasions.[119]
5. The fact that phones may have security features does not mean they are unlikely to be the subject of a robbery. A person who is made to hand over a phone can also be made to 'open' it.
6. The fact that the appellant did not rob the shop he went to later is not logically probative of whether he had tried to rob someone earlier. Nor is the fact that the appellant had previously borrowed and returned a phone from a friend or associate.
7. Second, the appellant questions why, if it had been his intention to steal a phone, he would have turned and walked away when one was produced and why would he not have taken Ms Bar‑Noy's phone.[120]
8. The evidence of the eyewitnesses was not that the appellant turned and walked away when a phone was produced. Their evidence was that they continued to back away from the appellant. The evidence of Mr Siafitu and Mr Meads was that the appellant left after Mr Siafitu pulled out his phone to call the police.
9. Further, the fact that the appellant did not use actual force when his demands were refused does not suggest he did not intend to steal a phone using threats.
10. Third, the appellant asserts, in effect, that he did not need to steal the phones because he had money.[121] The fact that he had money is not logically probative of whether he intended to steal a phone.
11. Fourth, the appellant repeatedly asserts that the incident occurred on his property. It seems that he asserts that he had a defence under s 244 of the Code. That section permits an occupier to, among other things, and subject to certain conditions, use force to make a person who is wrongfully on the occupier's property leave the property.
12. The incident did not occur in, or even near, the appellant's unit. The incident occurred on ground level, outside Mr Austen's unit and in the surrounding area. Mr Austen's unit was on the floor below the appellant's unit.

1. The appellant contends that he should have been acquitted on the basis of self‑defence. The appellant submits that it was reasonable for him to defend himself with a weapon as he was being attacked with weapons leading up to the day of the incident, in his unit, around his unit, and on the streets.[122]
2. It appears that the appellant contends that, due to his claimed history of being attacked, anything he said and did that was threatening during the incident was only done to defend himself, and not for the purpose of stealing a phone.[123]
3. The difficulty with this submission is that the jury was directed that, in order to find the appellant guilty, they must find that the appellant made the threats in order to obtain the men's phones and with intent to steal. They were directed that they could only infer that he intended to steal the phones if that was the only rational and reasonable inference that could be drawn from all the facts and circumstances established by the evidence as they found them. They were directed that, if there was another rational or reasonable inference open on the evidence, they could not draw an inference that the appellant intended to steal the men's phones.[124]
4. Our system of justice operates on the assumption that, as a general rule, juries understand and follow instructions that are given to them by trial judges.[125] Accordingly, the jury must have been satisfied beyond reasonable doubt that the appellant made the threats with the intention of permanently depriving Mr Siafitu and Mr Meads of their phones. The jury must have rejected the appellant's evidence that he was behaving in a threatening manner to protect himself, and that his intention was to keep the men away. The jury must also have rejected his evidence that he only wanted to borrow a phone.
5. Given that the jurors were directed that, in order to find the appellant guilty, they must find that the appellant made the threats in order to obtain a phone and with intent to steal, it would have been unnecessary and confusing to direct the jury as to self‑defence. By finding the appellant guilty, the jury was necessarily satisfied beyond reasonable doubt that the appellant was not acting in self‑defence.

A threat must be accompanied by a bodily act only when an assault is alleged

1. The appellant submits that to constitute an assault, a threat must be accompanied by a bodily act or gesture, and he should therefore be acquitted. This submission is misconceived. The appellant was not charged with assault nor with an offence of which assault was an element. He may be under that misapprehension because the Certificate of Final Outcome describes counts 3 and 4 as aggravated assault with intent to rob. However, it is apparent that the Certificate of Final Outcome has simply used the generic name of the offence reflected in the heading of s 393 of the Code, rather than giving a more accurate description of the offences in the indictment.

1. Having undertaken an independent assessment of the sufficiency and quality of the evidence adduced at trial, we do not have a reasonable doubt as to the appellant's guilt of counts 3 and 4. In our view, it was well open to the jury, acting reasonably, to be satisfied beyond reasonable doubt that the appellant was guilty on the evidence adduced at trial.

1. The appellant seeks leave to adduce additional evidence in the appeal.
2. This court has the power to admit evidence on appeal under s 40(1)(e) of the Criminal Appeals Act 2004 (WA). The principles governing this power are well settled.[126]
3. In considering the impact of additional evidence, there is a distinction between 'fresh evidence' and 'new evidence'. Fresh evidence is evidence that did not exist at the date of the trial or could not, with reasonable diligence, have been obtained or discovered for use at the trial. New evidence is evidence that existed, was available or could, with reasonable diligence, have been obtained or discovered for use at the trial.[127]
4. As noted by the respondent, the additional evidence initially sought to be adduced by the appellant can be broadly categorised as follows:
   1. materials relating to prior alleged victimisation of the appellant by being assaulted, by having his property stolen or damaged, or by having his unit burgled, including police incident reports, medical records and records from the lessor of his unit (the Housing Authority);
   2. ticketing records relating to the booking of a train journey from Perth to Kalgoorlie for the day after the offending;
   3. photographs of the unit complex taken by the appellant's father; and
   4. bank statements showing the appellant's bank balance on the date of the offending.
5. On 15 April 2025, the appellant filed further applications seeking to adduce additional evidence. That material comprises:
   1. more materials (or less redacted copies of the materials initially sought to be adduced) relating to prior alleged victimisation of the appellant by being assaulted, by having his property stolen or damaged, or by having his unit burgled;
   2. more ticketing records relating to the booking of a train journey from Perth to Kalgoorlie for the day after the offending;
   3. the witness statements of Mr Siafitu and Mr Meads and notes that had been made by the prosecution in proofing those witnesses; and
   4. a letter from Ms Bar‑Noy to the appellant thanking him for his apology.
6. The appellant asserts that the evidence is fresh evidence. It is not. With one exception, all the material is evidence that existed, was available or could, with reasonable diligence, have been obtained or discovered for use at the trial (at which the appellant was legally represented, and which took place 17 months after the offending).
7. The only material that did not exist at the time of the trial is the letter from Ms Bar‑Noy to the appellant thanking him for his apology. This letter is entirely irrelevant.
8. Putting aside Ms Bar‑Noy's letter, all the material is therefore new, as distinct from fresh evidence.
9. As this court said in Sturniolo:

[237] In a case involving evidence that is new rather than fresh, an appellant must show that the new evidence establishes that they are innocent or raises such a doubt that the court is satisfied that the appellant should not have been convicted. In essence, that test requires that the appellant demonstrate that a jury who had heard the evidence at trial combined with the additional evidence must, as distinct from might, have had a reasonable doubt.

[238] Thus, where new evidence, when considered with the evidence given at trial, leaves the conclusion open that the jury could reasonably convict, there is no miscarriage of justice even though it appears to the appellate court that it is unlikely that the jury would have convicted.

[239] In applying the test in [237] above, the evidence given at trial must be taken by the appellate court in the sense in which, having regard to the verdict, the jury must have accepted it.

[240] An accused person must bear the consequences of their decisions as to the calling and treatment of evidence at the trial. In this respect, the general precept applies, namely that with confined exceptions, a person is bound by their counsel's conduct of the trial.

(citations omitted)

1. Accordingly, the appellant must demonstrate that a jury who had heard the evidence at trial combined with the additional evidence must, as distinct from might, have had a reasonable doubt.

1. Much of the material the appellant seeks to adduce relates to his claims to have been the victim of repeated and serious attacks by assailants.
2. The appellant does not suggest that any of the witnesses in this case were involved in the alleged attacks. It appears that he seeks to adduce this evidence so as to argue that this alleged victimisation explains why he was armed and behaving in a threatening manner (and perhaps why he wanted to use a phone - to call the police and his father about the assault on him early that day). That is, that his intention was to protect himself (and call the police and his father), not to steal phones.
3. This proposed additional evidence does not assist the appellant.
4. The appellant gave detailed evidence in the trial of a history of being regularly and seriously assaulted in his unit and elsewhere. He said that, on the morning of the alleged offences, he was woken by being assaulted in his unit and was knocked unconscious. That evidence was not challenged in cross‑examination.
5. Much of the proposed additional evidence serves only to record occasions on which the appellant had made such claims previously, and would not have been admissible in the trial.
6. To the extent that the proposed additional evidence went beyond prior consistent statements, some of it contained material that could have damaged the appellant's credibility. The material includes:
   1. comments from health care professionals that the appellant was an 'unreliable historian';[128]
   2. statements by the appellant that did not appear to be truthful and that he later withdrew;[129]
   3. police accounts of the appellant behaving aggressively (including spitting towards police and slamming a door repeatedly in the face of an officer) and abusively (including using racial slurs);[130]
   4. body worn camera footage showing the appellant being abusive to the police (who he had called to report damage to his flyscreen door);[131]
   5. observations by police officers that the appellant appeared drug‑affected;[132] and
   6. indications that the appellant was himself responsible for some of his injuries and some damage to another unit in the complex. Records indicate that the appellant had multiple lacerations which he said had occurred 'while trying to break out of a friend's house', being unit 3. The screen door had been ripped off unit 3 and there was broken glass all over the ground.[133]
7. Even taken as a whole, the proposed additional evidence adds little to his unchallenged evidence about his prior victimisation.

1. The appellant seeks to adduce evidence that on the day of the incident a Prospector (Perth to Kalgoorlie) train ticket was purchased for the appellant to travel on 6 October 2021, and that the appellant's father later contacted the operator to reschedule to a later date.[134] The materials filed on 15 April 2025 recorded that the booking was made at 4.37 pm on 5 October 2021 ‑ that is, after the offences had been committed ‑ and the appellant's father cancelled the reservation at 11.00 am on 6 October 2021 (three and a half hours after the train had left Perth).
2. At trial, the appellant did not give evidence of intending to travel to Kalgoorlie the day after the offending. In seeking to adduce the evidence in the appeal, the appellant appears to submit that this material is relevant to his claimed intention to leave his unit and travel to Kalgoorlie to get away from the constant attacks and to heal from his injuries.
3. This proposed additional evidence adds little to his unchallenged evidence about his prior victimisation.

1. The appellant asserts that, in the police statements of Mr Siafitu and Mr Meads, each of them agreed that, when Mr Siafitu pulled out his phone, the appellant turned and walked away.[135]
2. In their statements, Mr Siafitu and Mr Meads described the events leading up to and including the demand for their phones. Both described Mr Siafitu pulling out his phone while moving away from the appellant.
3. In Mr Meads's statement, he said that Mr Siafitu made a call, which Mr Meads presumed was to the police, and that '[a]s he did this, the male walked off towards a park'. In his evidence, Mr Meads was not asked about Mr Siafitu using his phone.
4. In Mr Siafitu's statement, he said he pulled out his phone to phone the police and that he did not tell the man that he was phoning police but 'I think he knew as he immediately turned and walked away'. In Mr Siafitu's evidence, he said that he pulled out his phone to call the police '[o]nce I had made enough distance' from the man.[136]
5. That the appellant may have stopped demanding the phones when his demands were not complied with and it appeared the police were being called does not suggest that he did not have an intention to steal the phones when he was making the demands.
6. The appellant further submits that the proofing notes obtained by the State (and disclosed to the defence prior to the trial) showed that what Mr Siafitu and Mr Meads said in proofing was inconsistent with their testimony at trial. In our view, there were no material inconsistencies. Experienced defence counsel appeared to have been of the same view, as he did not use the proofing notes in cross‑examination.

1. The appellant seeks to adduce photographs of his unit to show that the offences occurred on his property. They do not show that. It was common ground that the appellant's unit was above Mr Austen's unit. No witness, including the appellant, gave evidence of any interactions occurring on the level above Mr Austen's unit.

1. It appears that the appellant seeks to adduce his bank statements to show that he had money on the day of the incident (between $49.20 and $71.36).[137] This is irrelevant. The fact that the appellant had some money in his bank account on the day of the incident is not probative of whether his intention was to steal a phone.

1. Finally, we note that, in his submissions, the appellant asserts a version of events that is more detailed, and in some respects inconsistent with, his evidence at trial. These unsworn assertions do not establish the additional details or new alleged facts. In any event, they would not assist the appellant.

1. The additional evidence, considered separately and cumulatively, does not demonstrate that a jury who had heard the evidence at trial combined with the additional evidence must have had a reasonable doubt. Indeed, even if the additional evidence had been 'fresh evidence', it does not even raise a significant possibility that the jury would have had a reasonable doubt.
2. We would refuse leave to adduce the additional evidence.

1. On 30 May 2025, after the court had reserved its decision in the appeal, the appellant attempted to file further materials. The appellant did not have leave to file any further materials.[138] Nevertheless, we reviewed the further materials. The further materials do not alter our conclusions.

1. For these reasons, there is no merit in the appeal.
2. We would dismiss the application for an extension of time, dismiss the applications to adduce additional evidence, and refuse leave to appeal. The appeal is therefore taken to be dismissed.

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

[1] The trial judge acquitted the appellant of the fifth count on the indictment after the close of the prosecution case.

[2] Primary court ts 18 of defence closing address, 23 March 2023.

[104] Sandy v The State of Western Australia [2024] WASCA 109 [63] ‑ [67], [72] ‑ [74], [76].

[105] Loh v The State of Western Australia [No 2] [2024] WASCA 166 [76].

[106] R v ZT [2025] HCA 9; (2025) 99 ALJR 676 [53] (Gageler CJ, Gleeson, Jagot & Beech‑Jones JJ).

[107] Appellant's submissions [59] ‑ [61]; WAB 33.

[113] Appellant's submissions [35]; WAB 27.

[117] Appellant's submissions [28]; WAB 25.

[118] Appellant's submissions [29]; WAB 25.

[119] Appellant's submissions [31]; WAB 26.

[120] Appellant's submissions [58]; WAB 32.

[121] Appellant's submissions [32]; WAB 26.

[122] Appellant's submissions [36]; WAB 27.

[123] Appellant's submissions [20] ‑ [27]; WAB 23 ‑ 25.

[125] Gilbert v The Queen [2000] HCA 15; (2000) 201 CLR 414 [13], [31].

[126] Sturniolo v The State of Western Australia [2023] WASCA 147 [234].

[127] Sturniolo [235], [237] ‑ [240].

[131] USB described as item 6 in the YAB.

[138] As to which, see Frigger v The State of Western Australia [2025] WASCA 7 [212] ‑ [213].