16 On 22 November 2016, the court was advised that no further written submissions would be made in respect of proposed grounds 3 and 4.

17 The State's case, as it was opened to the jury, was as follows.

18 Mr Davies was a user and dealer of methylamphetamine.[11] He owed money and perhaps drugs to, amongst others, Mr Roberts, Mr Gomis and Mr Kett. Mr Roberts and the appellant were friends. Both were users and/or dealers of methylamphetamine.[12] The appellant took an interest in the fact that Mr Davies owed Mr Roberts money. It is possible that Mr Davies also owed money to the appellant.[13]

19 Mr Davies was killed on 15 February 2014 at his house at 45 Ware Street, Kalgoorlie (45 Ware Street). In the days leading up to his death, Mr Roberts and the appellant spoke to a number of people about the fact that Mr Davies owed them money, or at least owed Mr Roberts money. Among the persons Mr Roberts and the appellant spoke to were Gavin Coughlan, Daniel Moir and Simone Kearsley.[14] At this time, Ms Kearsley was living at Mr Roberts' house, situated at 9 Hamilton Street, Boulder (9 Hamilton Street). She was staying at the house rent-free. In return, she cleaned and shopped for Mr Roberts and, on occasions, sold drugs for him.[15]

20 Approximately one week before Mr Davies' death, Mr Roberts, in the presence of the appellant, told Ms Kearsley that Mr Davies owed him money, and 'they [Mr Roberts and the appellant] were going to do a collect'.[16]

21 On 13 February 2014, Mr Roberts and Ms Kearsley drove from Kalgoorlie to Perth to buy a quantity of methylamphetamine.[17] The State's case was that Ms Kearsley made the purchase on Mr Roberts' behalf. On 14 February 2015, they returned to Kalgoorlie and Ms Kearsley began to sell some of the drugs on behalf of Mr Roberts.

22 On the evening of 14 February 2014, Mr Davies went to a bar. In the early hours of 15 February 2014, he returned home with a group of people, including Todd Denehy. Mr Davies showed Mr Denehy a new closed-circuit television system that he had installed.[18] Mr Denehy also saw that Mr Davies had put up a display board on a wall in the lounge room with a large number of knives attached to it.[19]

23 The State alleged that telephone records showed that, in the early hours of 15 February 2014, there was telephone contact in the form of calls and text messages between some of the accused and Mr Davies.[20]

24 Later, on the morning of 15 February 2014, all four accused were seen at Mr Roberts' house by Ms Kearsley, who heard them discussing going to Mr Davies house to collect the debts he owed.[21]

25 According to Ms Kearsley, on either 14 or 15 February 2014, she saw, near the bathroom at Mr Roberts' house, a large blue canvas bag about 1 - 2 m long, that was usually kept in a storeroom. The State's case was that this bag was brought to Mr Davies' house by one or more of the accused and, after he was killed, his body was placed in it.

26 The State's case was that somewhere between 3.26 pm and 4.00 pm on 15 February 2014, Mr Davies was attacked, tortured and killed at his house by the four accused men.[22] A post-mortem examination of Mr Davies' body conducted by Dr Amy Spark revealed that he suffered severe head injuries, including severe lacerations to his scalp from which he probably bled profusely. Mr Davies also suffered stab wounds to his neck which cut his jugular vein and subclavian veins, as a result of which a great deal of bleeding would have been expected.[23] A subsequent forensic examination of Mr Davies' house showed large areas of blood staining in the kitchen, lounge room (including the walls) and a room near a patio.[24]

27 According to the State's case, an examination of the crime scene revealed that Mr Davies was dragged from the lounge/kitchen area into what was described as the family room.[25] From the family room, he was likely placed into the blue canvas bag and then into a car which had been parked at the rear of Mr Davies' house, near a laneway.[26] At some point, Mr Davies was tied up with cable ties and his right ring finger was severed. A fire was lit at Mr Davies' house, into which CCTV cameras and other items were placed. Smoke from a fire was seen by Mr Davies' neighbours shortly after 4.00 pm.[27]

28 According to the State, Mr Davies' body was then taken to Mr Roberts' house where it was dismembered in the bathroom by at least Mr Roberts and the appellant.[28] Mr Davies' body parts were then put into a wheelie bin at the house.

29 The State alleged that the bag and other items connected with the killing were burned in a fire which was set in the backyard of Mr Roberts' house. Two witnesses, Tony Trunfio and Rory Radei, who were neighbours of Mr Roberts, smelled smoke coming from his house on the evening of 15 February 2014. When they looked, each saw flames in the backyard.[29] When the remains of the fire were later examined by police, they discovered a safe which had been removed from Mr Davies' house and other items including clothing and shoes.[30] The State's case was that Mr Roberts and the appellant burnt their clothes, shoes and other items which connected them to what occurred at 45 Ware Street.[31]

30 The State alleged that Mr Gomis and Mr Kett purchased a quantity of bleach from a supermarket.[32] According to Ms Kearsley, when she arrived home she saw only Mr Roberts and the appellant and they were cleaning the bathroom with bleach. She observed both men had blood on their bodies.[33] Ms Kearsley had also noticed the fire burning at the back of the house. Ms Kearsley was asked, and helped, to clean the bathroom.[34] When cleaning the bath, Ms Kearsley said she found small pieces of what appeared to be flesh which she threw into the toilet.[35]

31 Ms Kearsley observed that the wheelie bin was wheeled into the rear room at Mr Roberts' house.[36] At one stage, she observed both the appellant and Mr Kett go into the room after the wheelie bin had been moved there and heard one of the men screaming.[37]

32 On the evening of 15 February 2014, Mr Moir visited Mr Roberts' house. He noticed blood on the appellant.[38]

33 At about 1.00 pm on 16 February 2014, as a result of information given to them by Ms Kearsley, the police became aware that something had happened at 9 Hamilton Street. At about 2.00 pm that day, police officers were despatched to Mr Davies' house where they found large amounts of blood.[39] At about 3.00 pm, attending police officers went to Mr Roberts' house. Mr Roberts and the appellant were arrested. The wheelie bin was found. When it was opened, in addition to Mr Davies' dismembered body, the police discovered a machete and a knife which, the State contended, had been used to dismember the body.[40] Police noticed that the appellant's right hand was injured and he was taken to Kalgoorlie Regional Hospital where he was treated and given painkillers.[41] In addition to the injuries already noted, forensic pathologist, Dr Amy Spark, found a number of significant blunt-trauma type injuries to the top and back of Mr Davies' head which were consistent with the use of a weapon rather than fists.[42] She also found a number of stab wounds, not just to Mr Davies' neck, but also to his right hand, right calf and multiple stab wounds to his torso. Dr Spark observed evidence of the compression of the top of Mr Davies' spine.[43]

34 Dr Spark concluded that Mr Davies' death was caused by blunt-force injuries to the head, or a penetrating injury to the neck that cut the veins in that area, or blunt force or compression to the neck that somehow pushed Mr Davies' neck down or a combination of these things.[44]

35 The premises at 45 Ware Street were forensically examined. A fingerprint left in some blood on a tap in the kitchen sink was matched to the appellant. A DNA profile extracted from the blood matched Mr Davies' DNA profile.

36 A DNA profile matching that of the appellant was also found in bloodstains at Mr Davies' house, including a mixed DNA profile matching the profiles of the appellant and Mr Davies on the door of a bar fridge.[45]

37 The appellant's DNA was also matched with DNA found on an axe handle located in Mr Davies' kitchen and a samurai sword located on Mr Davies' kitchen bench next to the sink.[46] A fingerprint lifted from the samurai sword also matched the appellant's fingerprint.[47]

38 The appellant's and Mr Roberts' DNA was matched with DNA found on a cardboard roll near a toolbox at 45 Ware Street and on one of two cable ties that were joined.[48] A swab taken from the doorframe which led into the bathroom of Mr Davies' house, which was later found to be blood, was found to have DNA profiles matching those of both the appellant and Mr Davies.[49]

39 At 45 Ware Street, a broken piece of furniture was found to have the appellant's fingerprint on it.[50] DNA profiles also found at 45 Ware Street matched those of Mr Roberts, Mr Gomis and Mr Kett.

40 A knife was discovered at 45 Ware Street on the kitchen floor which had gaffer tape tightly wrapped around it. Significantly, a gardening saw and another knife which were similarly wrapped were found by police at 9 Hamilton Street. Mr Davies' DNA matched DNA found on the tip of the knife located at 9 Hamilton Street.[51] It was alleged that the knife found at Mr Davies' house had been brought there from Mr Roberts' house.

41 Police discovered an empty bleach bottle at 9 Hamilton Street, which was later found to have on it a fingerprint that matched the appellant's fingerprint.[52] The State contended that this showed that the appellant was involved in the clean-up.

42 The State prosecutor described the essence of the case against the appellant in this way:

But essentially, the State's case against [the appellant] is this: that he was either owed money by Davies or at least considered that he had an interest in the fact that money was owed to Mr Roberts because of the fact that he was dealing in drugs with Mr Roberts.

The forensic evidence I have already referred to places [the appellant] inside Mr Davies' home and in particular, of significance, is the fingerprint that had Mr Davies' blood. So he's come into contact with Mr Davies' blood and the State's case is that it could not have been an innocent connection.

There is DNA matching [the appellant], as I said to you earlier, in the lounge area and in the kitchen area, but importantly, also on the axe handle. Now, I spoke to you earlier about the nature of the injuries that were found by Dr Spark and the significant lacerations to the head being consistent with significant blunt force injury and more likely with a weapon, a hard object, than with a fist or being simply hands. So [the appellant's] DNA on the axe handle is significant in the case against him.

And then significantly also, given that there were injuries to Mr Davies of stabbing, of many cuts to his body but specifically of the stabbing to his neck, is the fact that [the appellant's] DNA or DNA matching his DNA was found on the small sword on the kitchen bench. And you'll have an opportunity to see that in the course of the trial. We haven't got them here now, but you will see these items later in the course of the trial.

I should have actually mentioned, I think I overlooked this, that there was in fact DNA from Mr Davies on the tip of that.

Finally, in relation to [the appellant], both [Ms Kearsley] and [Mr Moir] saw him behaving in a rather manic way after the event but particularly, they saw that he had - well, certainly Ms Kearsley saw that he had blood on his arms; Mr Moir saw that he had blood on his face or his neck.

So the State's case, ladies and gentlemen, is that when you put all of those pieces of evidence together, motive, together with his connection to 45 Ware Street and the DNA connection to items that have Mr Davies' DNA, you can be satisfied that he was involved in the murder of Mr Davies.[53]

43 The State alleged that the four accused went to 45 Ware Street with an unlawful purpose in mind. They did not go there to negotiate the repayment of debts.[54] The State's case was that, at the very least, all of the accused went to Mr Davies' house to rob him and that they intended to use a significant degree of violence because that is what, in fact, happened.[55]

44 The State's case in relation to each accused was that, if he was not a principal offender pursuant to s 7(a) of the Code, he was an aider, pursuant to s 7(c) of the Code. Alternatively, he was guilty by virtue of s 8 of the Code.[56]

45 Specifically with respect to the appellant, the State's case was that he was at least one, if not the only, person who inflicted violence upon Mr Davies.[57]

46 In this regard, the prosecutor identified five items which the State argued were potentially weapons, having regard to the discovery of Mr Davies' blood on each. Those items were the axe handle, the samurai sword, a metal bar which was found on the floor near the kitchen, the piece of wood and the knife with the gaffer tape tightly wrapped around the handle.[58] DNA consistent with the appellant's DNA profile was found on the axe handle and the samurai sword. The State also noted that the blade of the knife found at 9 Hamilton Street not only had stains on it which matched Mr Davies' DNA profile, but also had the appellant's fingerprint on it.[59]

47 The prosecutor also relied upon the DNA evidence and fingerprint evidence that were found on various items discovered by the police at Mr Davies' house and fingerprint evidence found on the bleach bottle at 9 Hamilton Street. The State also relied upon the DNA evidence being found on the cable tie found in the lounge area of Mr Davies' house. The State's case was that the cable tie matched the cable ties that they allege were used to restrain Mr Davies.[60]

48 The appellant elected to give evidence. The evidence he ultimately gave was broadly consistent with the way his counsel opened his case which was as follows.

49 Defence counsel told the jury in her opening address that the appellant took no issue with the contention that Mr Davies was unlawfully killed at 45 Ware Street. She explained to the jury that the appellant, Mr Roberts, Mr Kett and Mr Gomis together went to Mr Davies' house on 15 February 2014. The appellant was aware that Mr Davies owed Mr Roberts, Mr Kett and Mr Gomis money, but he denied that Mr Davies was indebted to him.[61] According to the appellant, he went along with his co-accused, but with no purpose in mind.[62]

50 Although he was present when Mr Davies met his death, the appellant denied that he was in any way criminally responsible.[63] However, the appellant concealed Mr Davies' death and admitted that he committed the offence of being an accessory after the fact of murder.[64]

51 According to the appellant, when he entered Mr Davies' house, Mr Davies motioned as if to pick up a weapon.[65] Seeing this, the appellant said that he punched Mr Davies in self-defence. A fist fight broke out between them, during which the appellant said he broke his hand.[66]

52 The appellant said that Mr Kett unexpectedly clubbed Mr Davies with a metal bar. The appellant claimed that he tried to stop Mr Kett.

53 At one point in the struggle, Mr Davies rugby tackled the appellant to the floor and the television tipped onto the appellant, dazing him.[67] Mr Roberts, Mr Gomis and Mr Kett then assaulted Mr Davies. According to the appellant, Mr Kett intermittently kicked and struck Mr Davies.[68] The appellant said that Mr Kett and Mr Roberts cable-tied Mr Davies.[69]

54 The appellant claimed that he tried to help Mr Davies by putting a pillow under his head. By then Mr Davies was bleeding which accounted for the appellant's bloody fingerprint on the kitchen tap.[70] It was the appellant's case that Mr Kett stabbed Mr Davies in the lower right leg (not the neck). The appellant said that he did not plan nor expect any assault upon Mr Davies and that he did nothing to encourage the others to do so.[71] In fact, the appellant did his best to help Mr Davies. The appellant's case was that Mr Davies' body was taken back to Mr Roberts' house in a bag which, up to the point at which Mr Davies was placed in it, he had not seen.[72] The appellant's case was that Mr Roberts dismembered Mr Davies' body, but he assisted Mr Roberts in cleaning up the bathroom afterwards.

55 It is unnecessary to say much at this stage about the cases presented by Mr Roberts, Mr Kett and Mr Gomis. Of them, only Mr Roberts testified. He denied any involvement in Mr Davies' death or in the dismembering of his body. Mr Roberts denied going to Mr Davies' house on 15 February 2014. He said he was asleep at the time of the killing.

56 Mr Kett and Mr Gomis were interviewed by the police. Their interviews were admitted into evidence and played to the jury. In essence, they denied killing Mr Davies. Mr Kett denied inflicting any injury on Mr Davies. He did cable-tie Mr Davies and move his body. He also went through Mr Davies' house looking for things to steal. Later, he bought the bleach. He did these things under duress from the appellant and Mr Roberts. Mr Gomis admitted being at 45 Ware Street, but did not inflict any injury on Mr Davies, nor did anything intending to aid the others. He admitted removing and burning the CCTV equipment at Mr Davies' house, but only to protect himself.

57 The appellant and the co-accused denied any common intention to rob Mr Davies.

58 As we have mentioned, ground 1 was abandoned by the appellant's counsel at the hearing of the appeal. Now that the appellant is self-represented, he wishes to reinstate ground 1.

59 We accept that this court has, prior to judgment, the power to reinstate a ground of appeal that has been abandoned. However, an abandoned ground of appeal should be reinstated only where it is demonstrated that it is in the interests of justice to do so. In our view, that requires an appellant to demonstrate that the ground of appeal, had it been argued, would have been upheld. It is insufficient for an appellant to seek the reinstatement of an abandoned ground of appeal merely because, as the appellant contends, his counsel did not have instructions to abandon the ground.

60 The background to ground 1 is as follows. Section 118 and s 155 of the Criminal Investigation Act 2006 (WA) (CIA) relevantly read as follows:

1. Admission in serious case inadmissible unless recorded

(1) In this section -

admission means an admission made by a suspect to a police officer or a CCC officer, whether the admission is by spoken words or by acts or otherwise;

adult means a person who has reached 18 years of age;

child means a person who is under 18 years of age;

reasonable excuse, for the absence of an audiovisual recording of an admission, includes -

(a) the admission was made when it was not practicable to make an audiovisual recording of it;

(b) equipment to make an audiovisual recording of the admission could not be obtained while it was reasonable to detain the suspect;

(c) the suspect did not consent to an audiovisual recording being made of the admission;

(d) the equipment used to make an audiovisual recording of the admission malfunctioned.

(2) This section applies in respect of a suspect who is -

(a) a child charged with an indictable offence, irrespective of whether, if an adult were charged with it, it could be dealt with by a court of summary jurisdiction; or

(b) an adult charged with an indictable offence that cannot be dealt with by a court of summary jurisdiction.

(3) On the trial of the suspect for the offence, evidence of any admission by the suspect is not admissible unless -

(a) the evidence is an audiovisual recording of the admission; or

(b) in the absence of an audiovisual recording of the admission -

(i) the prosecution proves, on the balance of probabilities, that there is a reasonable excuse for the absence; or

(ii) the court decides otherwise under section 155.

(4) Subsection (3) does not apply to an admission by a person made before there were reasonable grounds to suspect that he or she had committed the offence.

...

1. Inadmissible evidence, court may allow admission

(1) This section applies if under another section a court may make a decision under this section in relation to evidence that is not admissible in proceedings in the court.

(2) The court may nevertheless decide to admit the evidence if it is satisfied that the desirability of admitting the evidence outweighs the undesirability of admitting the evidence.

(3) In making a decision under subsection (2) the court must take into account -

(a) any objection to the evidence being admitted by the person against whom the evidence may be given;

(b) the seriousness of the offence in respect of which the evidence is relevant;

(c) the seriousness of any contravention of this Act in obtaining the evidence;

(d) whether any contravention of this Act in obtaining the evidence -

(i) was intentional or reckless; or

(ii) arose from an honest and reasonable mistake of fact;

(e) the probative value of the evidence;

(f) any other matter the court thinks fit.

(4) The probative value of the evidence does not by itself justify its admission.

61 As we have said, the appellant was arrested on 16 February 2014. Later that afternoon, he was questioned under caution by two detectives. The interview contained admissions, but the State elected not to present evidence of it as it was accepted that the appellant was affected by methylamphetamine and alcohol at the time the interview was conducted.

62 On 17 February 2014, Constable Anton was assigned to guard the appellant, who was being held at the Kalgoorlie police station as an arrested suspect. At about 11.30 am, the appellant was awoken so that he could be taken to hospital for treatment to his injured hand. Constable Anton accompanied the detective and the appellant to hospital. They returned to the Kalgoorlie police station at about 1.30 pm. Constable Anton resumed his guard duty.

63 In a statement dated 22 February 2014, Constable Anton stated, among other things:

1. During my time with [the appellant] at the hospital and in the room, he made several comments without being questioned.
2. I recall [the appellant] saying: 'I bashed that cunt pretty bad.' 'I did the crime so I should do the time'. 'What happened was tragic but he had it coming to him. He ripped a lot of people off and a lot of people were looking for him'.
3. [The appellant] also said that 'Jayden' was more involved than people think and that he 'organised the whole thing'.

64 The State alleged that the statements made to Constable Anton by the appellant constituted admissions by the appellant of his complicity in the alleged offence. The State sought to adduce evidence of these admissions, even though no audio-visual recording of them was made, on the basis that there was a reasonable excuse for the absence of an audio-visual recording pursuant to s 118(3)(b)(i) CIA. Alternatively, the State submitted that if there was no reasonable excuse for the absence of an audio-visual recording, the court should nevertheless admit the evidence pursuant to s 155 CIA. The appellant objected to the proposed evidence of Constable Anton and a voir dire was conducted by the trial judge during the trial in which only Constable Anton testified.[73]

65 After this testimony, defence counsel conceded that, in the circumstances, it was not practicable for recordings to have been made of the admissions.[74] Defence counsel accepted, in effect, that his Honour was not required to exercise the discretion conferred by s 155 CIA.

66 His Honour granted the State's application and allowed Constable Anton to give evidence of the admissions made by the appellant.

67 His Honour later gave comprehensive written reasons for his decision.[75] His Honour found that the admissions were made by the appellant spontaneously,[76] in circumstances where there was no reason for the police to have anticipated that the appellant might make admissions.[77] His Honour found that, on the balance of probabilities, there was a reasonable excuse for the absence of an audio-visual recording of the admissions.[78] He went on to find that, had it been necessary, he would have allowed the State to adduce the evidence pursuant to the discretion conferred by s 155 CIA.[79]

68 Proposed ground 1 sought to impugn his Honour's decision to admit the admissions made by the appellant to Constable Anton, but in a way which was misconceived and doomed to fail. The proposed ground and the submissions in support of it focused entirely on that part of his Honour's decision relating to the exercise of the discretion under s 155 CIA. The submissions overlooked the fact that the trial judge had found that there was a reasonable excuse for the absence of an audio-visual recording of the admissions and that they were admissible pursuant to s 118(3) CIA, a finding which the appellant's trial counsel had all but conceded and which the appellant (unsurprisingly) did not challenge in this appeal.

69 When this difficulty was drawn to the appellant's counsel's attention at the hearing of this appeal, he quite properly conceded the ground was unarguable and abandoned it.

70 Proposed ground 1 should not be reinstated because it has no merit. His Honour's ruling to allow the State to adduce the admissions pursuant to s 118(3) CIA was correct. Once that finding was made, s 155 CIA had no application. As the ground of appeal has no merit, it is not in the interests of justice to reinstate it. The appellant's application to reinstate the ground must be refused.

71 The State's case against the appellant (and his co-accused) on the charge of murder was put to the jury on alternative legal formulations of liability.

72 It was held in Mouritz v The State of Western Australia[80] and later in Michaels v The State of Western Australia,[81] that where the alternative legal formulations of liability rest on the same or a substantially similar factual foundation and which do not involve materially different issues or consequences, the jury only has to be unanimous in the verdict: it is not necessary that all members of the jury arrive at the same verdict by the same pathway.[82]

73 However, where the alternative legal formulations of liability rest on materially different factual foundations or involve materially different issues or consequences, a trial judge is required to direct the jury that, in order to convict the accused of the offence charged, the jury must be unanimous as to the pathway to guilt. In these reasons, we will refer to this direction as a 'separate pathways direction'.[83]

74 In the present case, the trial judge raised with counsel whether he should give a separate pathways direction.[84] The prosecutor submitted that such a direction was not required. The appellant's counsel did not seek a direction. In the end, his Honour gave no such direction, ruling that it was inappropriate on the facts of this case.[85] Trial counsel for Mr Gomis took exception to his Honour's failure to give a separate pathways direction.[86] The appellant's trial counsel made no such submission.

75 In essence, ground 2 alleges that his Honour was, in the circumstances of the case, obliged to give a separate pathways direction and that his failure to do so was an error of law or has occasioned a miscarriage of justice.

76 The State's separate pathways to guilt relied upon the operation of s 7(a) and s 7(c) of the Criminal Code or, alternatively, s 8. Those sections are, relevantly, in these terms:

When an offence is committed, each of the following persons is deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it, that is to say -

(a) Every person who actually does the act or makes the omission which constitutes the offence;

...

(c) Every person who aids another person in committing the offence;

...

1. Offence committed in prosecution of common purpose

(1) When 2 or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of such purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of such purpose, each of them is deemed to have committed the offence.

77 It is common ground in this appeal that the prosecution case was put to the jury on three pathways. His Honour described these pathways as follows:

• Pathway 1: that each of the accused was guilty of the offence of murder because each of them was a party to an understanding or arrangement amounting to an agreement to kill Mr Davies (this was referred to at trial as a 'joint criminal enterprise').
• Pathway 2: that one or more of the appellant, Mr Roberts or Mr Kett[87] did an act or acts that caused Mr Davies' death with an intention to cause his death or an intention to cause Mr Davies a bodily injury of such a nature as to endanger or be likely to endanger his life. Any such offender was a principal offender, pursuant to s 7(a) of the Criminal Code.[88] Alternatively, if an accused was not a principal offender, each was nevertheless guilty because he aided the principal offender to murder Mr Davies, pursuant to s 7(c) of the Criminal Code.[89]
• Pathway 3: that each of the accused is guilty of murder because they formed a common purpose between them to rob Mr Davies with violence or threats of violence and with weapons. It was alleged that the offence of murder was committed in the course of carrying out that common intention and that the commission of the offence of murder was a probable consequence of the common purpose of robbing Mr Davies with violence and threats of violence and with weapons.[90] This pathway relied on s 8 of the Criminal Code.

78 His Honour gave the jury detailed directions on each pathway and provided the jury with written jury aids that reflects his oral instructions. No complaint was made at trial about these directions.

79 Before proceeding further, it is necessary to say something about pathway 1. Although pathway 1 was referred to in the trial as a 'joint criminal enterprise', in this appeal counsel for the appellant expressly conceded that the trial judge did not erroneously direct the jury to the effect that the common law doctrine of joint criminal enterprise could ground criminal liability independently from s 7 and s 8 of the Code.[91] Counsel for the appellant accepted that pathway 1 was tied by his Honour to s 7(a) of the Code.[92]

80 For the purposes of ground 2, counsel for the appellant acknowledged that there was no material difference between pathways 1 and 2, and that a separate pathways direction was not required in respect of them. The appellant's contention is that pathway 3 required a separate pathways direction.[93]

81 In support of ground 2, counsel for the appellant submitted that pathway 3 was 'an entirely different pathway to criminal liability' when compared to the other pathways.[94] With respect to pathway 3, counsel for the appellant focused on, as he put it, 'the different intent, an intent formed at a different time' and that the weapons that were used to attack Mr Davies may have already been at 45 Ware Street and may not have been brought from 9 Hamilton Street.[95]

82 Counsel for the appellant elaborated on these submissions. He said that the 'different intent formed at a different time' in respect of pathway 3 was the intent to rob Mr Davies which, on the State's case, was formed at 9 Hamilton Street. The appellant's counsel submitted that the robbery that was contemplated at that address may not have involved actual violence or the bringing of weapons to Mr Davies' house. Counsel asserted that this was 'different to heading off from Hamilton Street [having agreed] let's go and kill this guy'.[96]

83 The appellant's counsel claimed that without a separate pathways direction:

[Y]ou may end up with [the appellant] being convicted because six jurors think he set off from Hamilton Street to go and kill Mr Davies or be part of the group who was going to kill Mr Davies and six think that he went there intending to rob and that it was a probable consequence that death would follow or death would occur, so they're quite different pathways.[97]

84 It has never been the law that individual jurors must agree on every matter before reaching a verdict. Nor has it been held that the concept of a unanimous verdict requires each juror to be satisfied that the prosecution has established its case in one particular way.[98] It is trite to observe that criminal liability under s 8 of the Code is different to liability under s 7 and, in particular, s 7(a) and s 7(c). However, this difference alone does not, as the appellant's counsel acknowledged in oral argument,[99] necessitate a separate pathways direction. This is exemplified by the Queensland Court of Appeal's decision in R v Leivers and Ballinger.[100] In that case, the appellant (and others) were charged with murder. The case against each accused was not that each was a principal offender, but rather that each was an offender pursuant to s 7(1)(c) or s 8 of the Criminal Code (Qld) (the equivalents of s 7(c) and s 8 of the Western Australian Criminal Code). On the facts, it was held that the alternate bases for liability did not involve materially different issues or consequences. Thus, a direction to the effect that the jury could reach a guilty verdict if some of the jurors were satisfied of the appellant's guilt by reason of s 7(1)(c) and some by s 8, was held not to be erroneous.

85 In the present case, all three pathways to guilt postulated by the State arose from the same series of events which commenced on the afternoon of 15 February 2014 at 9 Hamilton Street and which proceeded to Mr Davies' house at 45 Ware Street, ending up back at 9 Hamilton Street.

86 It was common ground that the appellant, Mr Roberts, Mr Gomis and Mr Kett were together at 9 Hamilton Street. They then travelled together to 45 Ware Street. There, Mr Davies was unlawfully killed. The appellant admitted punching Mr Davies (albeit in self-defence and in a way which did not cause or contribute to his death). He participated in the removal of Mr Davies' body and its transportation from 45 Ware Street to 9 Hamilton Street, where it was dismembered. The appellant then, at the very least, cleaned the bathroom.

87 The facts relied upon by the State to prove pathways 1 and 2 were substantially the same facts required to prove pathway 3. Of course, proof of pathways 1 and 2 subsumed proof of pathway 3.

88 We do not see the factual differences which were identified by counsel for the appellant as amounting to differences of such a magnitude as to require a separate pathways direction. Different intentions amounting to the same offence do not give rise to the necessity for a separate pathways direction. Take, for example, the offence of murder, where the offence can be made out by either of the intentions specified in s 279(3) of the Code. Whether weapons were brought to 45 Ware Street from 9 Hamilton Street or not is a factual difference, but not one of substance. As counsel for the appellant accepted, the appellant and his co-accused went to 45 Ware Street anticipating the possibility of violence, and Mr Davies was unlawfully killed by violent acts, including by weapons. Whether the weapons that were used were brought to 45 Ware Street from 9 Hamilton Street, or already existed at 45 Ware Street is not qualitatively of such a difference as to require a separate pathways direction.

89 The present case is different from those cases where it has been held that jurors must agree among themselves as to the route by which a verdict of guilty is reached. Such cases concern an offence such as fraud where the prosecution alleges a number of discrete acts as proof of an essential element of the offence charged and any one of those acts would entitle the jury to convict. In this type of case, the jury cannot convict unless they are in agreement about the particular act that was performed: see R v Walsh[101] and the cases cited therein, and Ardrey v The State of Western Australia.[102] However, in the context of murder and manslaughter cases, if alternative pathways to guilt are proposed by the prosecution but depend substantially upon the same facts, there is no need for a direction on unanimity about one or other of those pathways if they do not 'involve materially different issues or consequences'. This is a case in which the latter applies.

90 The argument put by the appellant in this case, if accepted, would lead to undue complication in criminal cases, and injustice. In the Canadian case of R v Thatcher,[103] Dickson CJC cited with approval Professor Peter Mackinnon in his article 'Jury unanimity: A Reply to Gelowitz and Stuart' 51 CR (3d) 134 at 135, who wrote:[104]

If an accused is to be acquitted in situations where every juror is convinced that the accused committed a murder in one of two ways, merely because the jury cannot agree on which of two ways 'it is difficult to imagine a situation more likely to bring the administration of justice into disrepute - and deservedly so'.

91 Although not decisive, it is of some relevance that the appellant's experienced trial counsel took no issue with his Honour's decision not to give a separate pathways direction.

93 Proposed ground 3 alleges that the verdict of guilty should be set aside because, having regard to the evidence, it is unreasonable or cannot be supported.[105]

94 The legal principles applicable to this ground were recently summarised in Wells v The State of Western Australia as follows:[106]

The principles governing a ground of appeal that the verdict is unreasonable or cannot be supported by the evidence are well known. They may be summarised as follows.

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

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

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

(4) in answering that question, the appeal court must pay full regard to the consideration that the jury was entrusted with the primary responsibility of determining guilt or innocence, and to the advantage that the jury had of seeing and hearing the witnesses;

(5) a doubt experienced by an appellate court would be a doubt which a jury ought also to have experienced, unless the jury's advantage in seeing and hearing the evidence is capable of resolving that doubt;

(6) if the evidence, upon the record, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the appellate court to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the appellate court must set aside the verdict;

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

95 The case against the appellant was circumstantial. Where the prosecution's case relies upon circumstantial evidence, guilt must be the only reasonable and rational inference that could be drawn from the circumstances. Circumstantial evidence must be evaluated in its entirety and not considered on a piecemeal basis in deciding whether there is an inference consistent with innocence reasonably open on the evidence.[107]

96 Under this ground of appeal, it is necessary to outline the salient evidence which was admissible against the appellant.

97 On 15 February 2014, Ms Robinson was living at 47 Ware Street, Kalgoorlie, next door to Mr Davies. When she arrived home at about 4.00 or 4.30 pm, she could smell something 'like burning plastic and chemicals' coming from 45 Ware Street.[108]

98 On 15 February 2014, Mr Jones lived at 43 Ware Street, Kalgoorlie. At about 4.03 pm he returned to his house to find smoke coming from the backyard of 45 Ware Street.[109]

99 In 2014, Ms Knott was the manager of the Gold Bar in Kalgoorlie. She was a very close friend of Mr Davies.[110] On the night of 14 February 2014, she saw Mr Davies at the Gold Bar in the company of two other men.[111] She saw Mr Davies leave the premises at about 3.10 am on 15 February 2014. Later that day, she attempted to contact him by text without success.[112]

100 Mr Trunfio lived at 5 Hamilton Street, Boulder. On the evening of 15 February 2014, he was at home with his housemates, Rory Radei and Brock Dalton-Jones.[113] At some point that evening, he noticed a distinctive smell like something was burning. He noticed that there was a fire in the backyard of 9 Hamilton Street. He estimated that the flames from the fire were roughly 2 m high. Whatever was burning did not smell like wood.[114]

101 Mr Radei testified that he noticed the distinctive smell of something burning sometime after 10.00 pm.[115] He saw a 'bonfire' at 9 Hamilton Street. He said that the flames were going over the fence and were 'up to about the gutter'.[116]

102 In February 2014, Ms Whiteway lived at 11 Hamilton Street, Boulder, next door to Mr Roberts.[117] On around a dozen or so occasions prior to February 2014, she and her husband socialised with Mr Roberts. On seven or eight of those occasions, she saw the appellant there.[118] She described the appellant as 'friendly' and 'full-on'. She described some of the features of the backyard of the premises.[119]

103 At about 6.30 pm on 15 February 2014, she saw a group of four or five people in Mr Roberts' backyard.[120]

104 At about 9.30 am on 16 February 2014, she went around to Mr Roberts' house. There, she saw the appellant. She noticed nothing unusual about his demeanour.[121]

105 Mr Hewitt was a friend of Mr Davies, but Mr Davies was also his drug dealer from whom he obtained methylamphetamine.[122] On the evening of 14 February 2014, Mr Hewitt arranged to buy about $300 worth of methylamphetamine from Mr Davies. It was agreed that Mr Davies would supply the drug to Mr Hewitt the following day.[123]

106 At some point in time on the afternoon of 15 February 2014, Mr Hewitt drove to Mr Davies' house. He noticed that the back gate was open which, he said, was 'very rare'.[124] When he got to the back door of the house, he noticed that a tap had been left running and that water had 'flooded out the back area'.[125] Mr Hewitt then looked inside the house and saw that it had 'been turned upside down'.[126] Mr Hewitt said that he walked inside the house and saw that the place 'was completely turned up'.[127] He saw what looked like a big pool of blood in the lounge room.[128] A short time later, he and his friend, Dennis, left.[129]

107 Mr Denehy was a friend of Mr Davies. He had seen Mr Davies smoking methylamphetamine,[130] and he had 'a very good inkling' that Mr Davies was perhaps making money from selling the drug.[131]

108 Prior to Mr Davies' death, Mr Davies showed Mr Denehy a home surveillance system that he had just purchased.[132] One of the cameras faced towards the laneway to his gate, from where it was possible to enter the premises. Another camera was below a back sliding door.[133]

109 On the Friday before Mr Davies' death, Mr Denehy noticed that Mr Davies had put up a board behind a 'boarded-up door' on which was displayed an array of knives and machetes.[134] Mr Denehy told Mr Davies to take the display down, which he did.[135] Later that evening and into the early hours of 15 February 2014, Mr Denehy saw Mr Davies at the Gold Bar.[136] Later still, Mr Denehy went to Mr Davies' house with 'a couple he knew'.[137] Mr Davies and the couple smoked some 'meth'.[138]

110 At about 5.00 am Mr Denehy and Mr Davies left the house in a taxi. Mr Davies was dropped off at the Hannan's View Hotel.[139]

111 In cross-examination by the appellant's counsel, Mr Denehy said that there were 10 or 15 knives and machetes on the board in Mr Davies' house.[140] He agreed with the suggestion that it was common to see knives and other weapons at Mr Davies' house.[141]

112 Mr Lane was a friend of Mr Roberts, with whom he had a very close relationship,[142] and at times acted as Mr Roberts' 'carer' when he had lapses in his mental health. Mr Lane frequently saw the appellant at Mr Roberts' house and was aware that Simone Kearsley was living there. At around lunchtime on 16 February 2014, Mr Lane and his wife visited Mr Roberts at his house.[143] There Mr Lane saw the appellant in the backyard.[144] He said the appellant 'was just the way I'd always seen him', that is, as though he was 'under the influence of something'.[145] Mr Lane noticed what looked like soot or grease around the appellant's chin area.[146]

113 Eventually, Mr Roberts came out of the house as if he had just woken up. Mr Lane, his wife, Mr Roberts and the appellant socialised for a while until two police officers arrived and asked if there had been a disturbance at the house.[147] Mr Roberts told the police that there had been no disturbance.[148] Shortly after that, Mr Lane and his wife left the premises.

114 Ms Kearsley is a sex worker.[149] At the time of Mr Davies' death, she was living at 9 Hamilton Street, Boulder, with Mr Roberts. Mr Roberts had been a client of hers.[150] He provided her with accommodation. At this point, he was not interested in sex with her. Rather, he wanted her to use drugs with him.[151] At all material times, Ms Kearsley was a regular user of methylamphetamine. While living with Mr Roberts, she said that she used the drug 'more than once a day'.[152] Methylamphetamine made her 'very scattered'.[153] Mr Roberts was also a user of methylamphetamine.

115 According to Ms Kearsley, Mr Roberts was a drug dealer and, at his request, she would sell drugs for him.[154] She said that she sold drugs for Mr Roberts on a daily basis.[155] Ms Kearsley said that she returned the cash she was given for the drugs to Mr Roberts. On one occasion, a few days before the alleged offence, she saw $20,000 in cash at the house.[156] In return for dealing in drugs for Mr Roberts, she received methylamphetamine and did not have to pay for food or rent.[157] From time to time she did shopping for Mr Roberts.[158]

116 Ms Kearsley said that she met the appellant through Mr Roberts at about the time she first moved into the premises at 9 Hamilton Street.[159] She said the appellant was always at the house.[160] She described the appellant as a 'standover guy or the guy that Roberts felt safe with'. She described the appellant as 'a mean bugger [who] didn't really like me very much'.[161]

117 Ms Kearsley said that she saw the appellant use amphetamines at 9 Hamilton Street. She became aware that he was using 'a lot of drugs'.[162] She said the appellant drank beer when he used amphetamines.[163]

118 Ms Kearsley recalled an occasion, perhaps a couple of nights before the alleged offence, on which she heard the appellant and Mr Roberts refer to Mr Davies and talk 'about some money to be collected'.[164] Mr Roberts said that 'there was money that they needed to get' from Mr Davies.[165] The appellant did not respond to this statement.[166] Ms Kearsley then entered the conversation, saying that, based on information she had received, 'there was no point in going [to Mr Davies's house] to collect money because the money had been taken ... the night previous [sic]'.[167] Neither the appellant nor Mr Roberts responded to this information.

119 Ms Kearsley said that she offered to drive the appellant and Mr Roberts to Mr Davies' house, but she received no answer to this offer.[168]

120 On 13 February 2014, Ms Kearsley took Mr Roberts to Perth. At that point, Mr Roberts had run out of drugs other than ecstasy.[169] Ms Kearsley said that she purchased 2 oz of methylamphetamine from somewhere in Rockingham for $20,000 in cash.[170] Mr Roberts provided the money. Once the purchase had been completed, she and Mr Roberts drove straight back to Kalgoorlie.[171]

121 Ms Kearsley said that when they returned to Kalgoorlie, the appellant and Mr Roberts judged the product to be 'good quality amphetamines'.[172] Mr Roberts then told Ms Kearsley to sell some to a man known as 'Jimmy'.[173] Not only did she sell some of the amphetamines to Jimmy, but she also sold 'bits and pieces around the place'.[174] She testified that she gave the proceeds of sale to Mr Roberts.[175]

122 Ms Kearsley testified that on 14 February 2014 the appellant and Mr Roberts left the house at 9 Hamilton Street together in Mr Roberts' car. They did not say to Ms Kearsley where they were going. Ms Kearsley was shown a text message with the date and time and she confirmed that the day she had been describing was actually 15 February 2014.[176]

123 On the morning of 15 February 2014 Ms Kearsley was at Mr Roberts' house. The appellant and his co-accused were present.[177] All of them (including Ms Kearsley) used amphetamine while they were there.[178]

124 According to Ms Kearsley, all four men spoke about collecting money from Mr Davies. Ms Kearsley volunteered that they should not bother going.[179] Ms Kearsley said that she would drive them, but Mr Roberts told her 'to go to bed and go to sleep'.[180]

125 After she went to her bedroom, she saw the appellant and Mr Roberts leaving the house in a car. She said that the other two men (Kett and Gomis) had also left the house.[181] Her recollection was that Mr Roberts and the appellant left at 'about 2, 3 o'clock, maybe'.[182]

126 Before Ms Kearsley heard the vehicle in which the appellant and Mr Roberts left, she noticed a 'big blue bag' in the hallway near a doorway at the rear of the house which eventually leads to the patio.[183] Ms Kearsley estimated the length of the bag to be a metre and a half, with a height of about a metre.[184] Mr Roberts had previously described it as 'a bicycle bag'.[185]

127 After the appellant, Mr Roberts and the others left the house, Ms Kearsley visited a friend who was in hospital.[186]

128 That night, Ms Kearsley returned to 9 Hamilton Street by taxi. She walked to the back of the house and saw what she described as a 'huge fire' burning in an area marked on the plans of the house as a fire pit.[187] She then went inside and saw the appellant standing in the dining area, covered in blood with an angle grinder in his hands.[188] At some stage, perhaps at about the time she saw the appellant, Ms Kearsley saw Mr Roberts. He too was covered in blood. She noticed blood on Mr Roberts' red shirt and on his neck.[189] Ms Kearsley was told to go to her room, which she did.[190] Ms Kearsley said that she became scared and left her room. She then put on gloves and started cleaning the bathroom after she was told to help. She described the bathroom as being 'covered in blood'. She said that she found flesh and some hair on a piece of scalp there.[191] She described the blood as being on the walls and 'all over the bath'.[192] After cleaning the bathroom, she helped clean up Mr Roberts.[193] Ms Kearsley described the appellant as 'pacing around' the house.[194] After a while, Mr Gomis and Mr Kett arrived.[195]

129 Ms Kearsley testified that the clothes Mr Roberts had been wearing 'went straight to the fire' at his request.[196] She said that she threw the pieces of flesh that she had retrieved from the bathroom into the toilet.[197]

130 Ms Kearsley said that the appellant had a shower, after which she thought he put his clothing into the fire.[198] Ms Kearsley could not recall whether anything else of substance was put into the fire.[199]

131 With respect to the wheelie bin, Ms Kearsley said that, upon her return to the house, she first saw it in the dining room.[200] Then she saw it outside on the patio area. After that, she saw it in the rear room of the house, with the appellant and Mr Kett.[201] She said she became aware of the two men being in the rear room when she heard Mr Kett scream.[202] She said that the wheelie bin ended up just outside the back door. She said that she saw Mr Kett tape up the wheelie bin. She was not sure who asked him to do this. She thought it was the appellant because Mr Roberts was asleep.[203] Mr Kett did not tape up the wheelie bin properly. As a result, the appellant asked Ms Kearsley to do it.[204] Ms Kearsley was unsure whether she helped Mr Kett tape up the wheelie bin.[205]

132 According to Ms Kearsley, the appellant was taking 'great pleasure' in instilling fear into Mr Kett.[206]

133 Ms Kearsley said that she then went to McDonald's. When she went to the car she noticed that there was a small safe on the back seat.[207] She said that someone collected it from the car and by the time she returned from McDonald's it had been thrown onto the fire.[208]

134 In addition to clothing and a safe being placed on the fire, Ms Kearsley said that she could smell plastic burning.[209]

135 Ms Kearsley thought that the bathroom mats that had been on the floor were placed on the fire after the appellant and Mr Roberts had their showers. Ms Kearsley thought that she placed those items on the fire.[210]

136 At just before daybreak the following day, Ms Kearsley left 9 Hamilton Street with Mr Kett.[211] Up until that time, she described the appellant's demeanour as being 'like a - a rabid animal, panting and pacing around and enjoying scaring this other boy [Kett]'.[212] Ms Kearsley then dropped Mr Kett home.[213] After eating breakfast at a café, Ms Kearsley went back to 9 Hamilton Street.[214] By this time, Mr Gomis had woken up.[215] Ms Kearsley saw the appellant in the dining room. She described him as being 'all hyped up'.[216]

137 Once again, Ms Kearsley left the house and went to McDonald's.[217] Her car broke down and she caught a taxi from McDonald's to the police station.[218]

138 We have not summarised all of the evidence which Ms Kearsley gave. Some of it was admissible only against the appellant's co-accused. At the conclusion of her examination-in-chief, the learned trial judge directed the jury to this effect. Specifically, he cautioned the jury that certain things that Mr Kett had said to Ms Kearsley as she drove him home could be used as evidence only against Mr Kett.[219]

139 His Honour also instructed the jury that they were to disregard anything Ms Kearsley said about the thoughts of the appellant or Mr Roberts or Mr Kett.[220]

140 Counsel for the appellant and his co-accused cross-examined Ms Kearsley at length. It is unnecessary to summarise all of the cross-examination. We will focus on the cross-examination by Ms Lonsdale, trial counsel for the appellant.

141 Ms Kearsley agreed with defence counsel that she had not said, in any of the four statements she had made to the police, that the appellant was Mr Roberts' 'heavy' or his 'standover man'.[221] Nevertheless, Ms Kearsley said in her evidence that she knew the appellant to be Mr Roberts' 'heavy' or his 'standover man'.[222] She denied that she had dreamed up that characterisation of the appellant.[223]

142 Ms Kearsley did not deny the proposition put to her by defence counsel that nowhere in her police statements did she say anything about the appellant having an angle grinder in his hands.[224] Ms Kearsley said that she must have 'missed' telling the police that, but she denied that she had made up her evidence on this point.[225]

143 Defence counsel returned to the issue of her illicit drug use. Ms Kearsley accepted the suggestion that she had been using methylamphetamine on and off for 20 years.[226] She denied suffering from any psychotic mental illness.[227] Ms Kearsley accepted that at the time of the alleged offence her drug use was 'full on'.[228] She denied an inability to recall the events in question.[229]

144 Ms Kearsley described the appellant as 'a bully' and 'a nasty, horrid man'.[230]

145 Ms Kearsley agreed with the proposition that Mr Roberts had a lot of tools and knives at his house.[231] She agreed that there were tools in the back of Mr Roberts' station wagon.[232]

146 Ms Kearsley accepted that she did not pay too much attention to the conversation between the appellant and Mr Roberts concerning Mr Roberts being owed money by Mr Davies.[233]

147 Ms Kearsley said she did not know to whom Mr Davies was indebted.[234] Ms Kearsley accepted that it was possible that she made no mention of the 'bike bag' to the police in her first two statements.[235]

148 Ms Kearsley denied the proposition that she went to the police so that there would be no suggestion that she was involved in Mr Davies' death.[236]

149 Ms Kearsley agreed that she did not go to the police straight away. She said that she needed time to think about what had happened. She admitted that she thought of running away and she also believed that some of the police officers in Kalgoorlie were corrupt.[237]

150 Ms Kearsley agreed that she had not been charged with any offence in relation to the events of 15 and 16 February 2014. In particular, she agreed she had not been charged with any offence relating to the clean-up of Mr Roberts' house.[238] Ms Kearsley said that she expected to be charged with drug offences, but she had not. She denied that the police told her that if she cooperated she would not be charged with anything.[239]

151 Ms Kearsley said that she assisted in the clean-up of Mr Roberts' house because she was 'scared'.[240]

152 Ms Kearsley confirmed that, after she returned to Mr Roberts' house on the evening of 15 February 2014, she saw the appellant 'panting around' like he was 'ready for more'.[241] Defence counsel asked Ms Kearsley what she meant by 'ready for more', to which she replied:

Well, he'd said it was meant for me and I should have been there.[242]

153 Ms Kearsley agreed that she wanted the jury to form as negative an impression of the appellant as possible.[243]

154 Ms Kearsley agreed with defence counsel's suggestion that the appellant was angry with Mr Kett.[244]

155 Ms Kearsley said that she did not like the appellant and had never liked him.[245]

156 Ms Kearsley accepted she had formed the impression that the appellant and Mr Roberts were responsible for Mr Davies' death.[246]

157 Ms Kearsley concluded that Mr Kett was 'messed up' because of what he had seen happen to Mr Davies.[247]

158 Ms Kearsley testified that the appellant had said, with respect to Mr Kett, 'He has to go', which she interpreted as meaning that the appellant was going to kill Mr Kett.[248]

159 With respect to the safe, Ms Kearsley agreed that, in the statement she gave to police on 17 February 2015, she said that Mr Roberts had wrapped the safe in a towel and taken it to the shed. She agreed that this account was different to her evidence.[249]

160 Ms Kearsley agreed with the proposition that the appellant and Mr Roberts were really good mates in those days.[250]

161 Ms Kearsley agreed that in her evidence-in-chief she said that she went to the police on 16 February 2014 after telephoning her friend 'Mick'.[251] In her statement she made to the police on 16 February 2014, she said that she visited Mick in hospital and made no reference to telephoning him. Ms Kearsley explained that what she had said in the statement was wrong.[252] Ms Kearsley agreed that she was confused as to the sequence of events over the days in question and further agreed that she was 'off [her] face'.[253]

162 Ms Kearsley agreed that she had formed the view that the appellant and Mr Roberts had killed Mr Davies, although she was not an eyewitness to what had occurred. She agreed that she was 'bending over backwards' to assist the police.[254]

163 Ms Kearsley agreed with propositions put to her by defence counsel for Mr Gomis that she went to the police because she:

(a) thought that what had happened to Mr Davies was wrong;[255] and

(b) felt that she was in danger and that Mr Gomis and Mr Kett were also in danger from the appellant and Mr Roberts.[256]

164 Ms Kearsley agreed that the climate at 9 Hamilton Street on the night of 15 February 2014 was one of fear which was created by what she saw the appellant and Mr Roberts do and say.[257]

165 Ms Kearsley agreed with the suggestion put to her by Mr Kett's counsel that 'a very close camaraderie' existed between the appellant and Mr Roberts.[258]

166 Ms Kearsley also agreed that, leading up to Mr Davies' death, Mr Roberts was getting quite agitated about the debt owed to him by Mr Davies.[259] She agreed that Mr Roberts mentioned to her that he was going to seek out Mr Davies to collect on a debt.[260] She further agreed that during one of these conversations between her and Mr Roberts about Mr Davies' debt and what she had described as a 'flogging', the appellant was present.[261]

167 Ms Kearsley said that she did not hear any conversation between the appellant and Mr Roberts about how they were going to collect the debt owed by Mr Davies.[262]

168 Ms Kearsley agreed that, when she and Mr Roberts returned to Kalgoorlie from Perth, having purchased 2 oz of methylamphetamine, Mr Roberts told her that the appellant was his 'protector'.[263]

169 Mr Roberts told her on another occasion that 'the bikies feared [the appellant]'.[264]

170 Ms Kearsley stated that when she returned to 9 Hamilton Street on the evening of 15 February 2014, it was Mr Roberts who held the angle grinder.[265] She admitted she erred when she told the appellant's counsel that it was the appellant who held the angle grinder.[266]

171 Ms Kearsley said that the appellant was antagonising Mr Kett on the night of 15 February 2014 and that Mr Kett appeared fearful.[267]

172 Ms Kearsley agreed with counsel for Mr Roberts that in and around February of 2014, she had 'a real problem with methylamphetamine'[268] and that she had hardly slept, if at all, between Thursday, 13 February 2014, and Sunday, 16 February 2014, because she had been using methylamphetamine.[269]

173 Ms Kearsley agreed that she would have had some methylamphetamine on the night of 15 February 2014.[270]

174 Ms Kearsley accepted that she was under the influence of methylamphetamine throughout the period leading up to and after the alleged offence.[271] She confirmed that on the evening of 15 February 2014, she was driven to 9 Hamilton Street by her friend Jimmy.[272]

175 Ms Kearsley denied the proposition that she was the drug dealer and that Mr Roberts occasionally helped her.[273] Ms Kearsley agreed that she did not know what had gone on at 45 Ware Street, but she said that when she arrived at 9 Hamilton Street after visiting her friend, there was 'plenty going on at the house'.[274]

176 Although she made no mention of it in her police statement, Ms Kearsley confirmed that she heard a conversation between the appellant and Mr Roberts about 'flogging' Mr Kett.[275]

177 Ms Kearsley once again confirmed that the person holding the angle grinder was Mr Roberts and not the appellant.[276]

178 Ms Kearsley also confirmed that it was the appellant who was 'terrorising' Mr Kett and it was the appellant who caused her to be fearful.[277]

179 Ms Kearsley said that the appellant did nothing physically to stop her taking Mr Kett from the house to his home.[278]

180 Towards the end of her cross-examination, Ms Kearsley explained her state on 15 and 16 February 2014 in these terms:

[I]t's not every day you stumble on a murder. No, I was confused. I was on drugs. Yeah, I was confused. I was upset. ... I didn't know which way to turn.[279]

181 In re-examination, Ms Kearsley acknowledged that in one of the statements she made to police she stated that she had not slept for several days, she had taken drugs and was stressed. She also said that she wished to review the statement after she slept in case she got the order of events mixed up and she remembered more.[280]

182 Mr Coughlan first met the appellant in about 2008 while they were working together at the Kalgoorlie nickel smelter.[281] Mr Coughlan did not see the appellant for a few years, but then ran into him again in 2011 or 2012. At that time, Mr Coughlan had a room to rent. The appellant moved in with Mr Coughlan at 30 Moran Street, Boulder, and paid him $100 a week in rent, plus expenses.[282] While the appellant lived at 30 Moran Street, Mr Coughlan observed that he drank alcohol 'most days',[283] but he did not recall the appellant using drugs.

183 Closer to the time of the alleged offence, Mr Coughlan noticed some changes in the appellant's behaviour. According to Mr Coughlan, the appellant spent more time away from his house and he was 'possibly' drinking more and was agitated.[284] The appellant got behind in his rent.[285]

184 Mr Coughlan met Mr Roberts through the appellant. On occasions, he went to Mr Roberts' house at 9 Hamilton Street. Mr Coughlan recalled a conversation at 9 Hamilton Street a few weeks prior to 14 February 2014 which involved the appellant and Mr Roberts. He recalled an 'offhand comment' being made about how 'a guy called Beau' owed them money.[286]

185 In cross-examination by the appellant's counsel, Mr Coughlan accepted that, not long before the appellant was arrested, he (the appellant) was emotionally upset by the death of his brother.[287]

186 With respect to the conversation he heard between the appellant and Mr Roberts concerning a debt, it was possible that it was Mr Roberts who said he was owed money.[288]

187 In cross-examination by defence counsel for Mr Roberts, Mr Coughlan said that he remembered the conversation between the appellant and Mr Roberts because 'the name of the guy [Beau] ... was an odd name'.[289] He denied that he made up the conversation.[290] Mr Coughlan agreed that it could have been the appellant who said that he was owed money rather than Mr Roberts.[291]

188 In late 2013, early 2014, Mr Moir was living and working in the Kalgoorlie-Boulder area. He was a user of methylamphetamine. He used the drug mostly on his days off work.[292]

189 In about mid-2013 he met Mr Davies at the Gold Bar and they became friends. Mr Davies also supplied Mr Moir with methylamphetamine.[293] Mr Moir estimated that he saw Mr Davies about six times in the six-month period prior to his death.[294]

190 Mr Moir said that he first met the appellant at the Broken Hill Hotel about 2 1/2 months before 'all this happened'.[295] According to Mr Moir, the appellant told him that he could get him some 'gear' (drugs).[296] Mr Moir went to 9 Hamilton Street where he 'scored' drugs and left.[297] He returned to 9 Hamilton Street frequently after that. He said that, on all but one of those occasions, Mr Roberts supplied him with small amounts of drugs.[298]

191 Mr Moir testified that on one of his visits to 9 Hamilton Street sometime after 27 January 2014, he had a conversation with the appellant and Mr Roberts in which Mr Davies' name came up. Mr Roberts asked Mr Moir if he had seen Mr Davies. Mr Moir replied in the negative. Mr Moir showed Mr Roberts a text message he had received from Mr Davies. Mr Moir gave them Mr Davies' telephone number, which Mr Roberts cross-referenced against the number he had for Mr Davies written on a whiteboard. Mr Roberts then said that it was the same number, suggesting that Mr Davies had been ignoring his calls.[299]

192 According to Mr Moir, he, the appellant and Mr Roberts then walked outside and the appellant and Mr Roberts said, 'Just going to get him. We're after him'.[300]

193 On Friday 14 February 2014, Mr Moir went to 9 Hamilton Street and purchased methylamphetamine from Mr Roberts.[301] Later that night, he went back to the house to purchase more drugs.[302] Mr Moir described the appellant's appearance as 'well and truly cooked', by which he meant he was 'high' on drugs.[303]

194 At about 5.00 or 5.30 pm on 15 February 2014, Mr Moir telephoned Mr Roberts' phone, but the appellant answered. When asked to describe the appellant's tone, Mr Moir said 'he just seemed very agitated'.[304]

195 Mr Moir said he went to 9 Hamilton Street and entered from the back of the property. When he entered, he noticed 'two young blokes there'.[305]

196 Eventually, the appellant emerged from the house through the back door. When asked to describe him, Mr Moir said that 'he was off his head'. Mr Moir went on to describe the appellant as being 'out of control'.[306] Mr Moir said that he advised the appellant to get some sleep. Mr Moir noticed blood on the left-hand side of his neck and 'a bit' on his clothes.[307] Mr Moir described the blood on the appellant's neck as 'just splattered little crops [sic] going down and onto his clothes'.[308] When Mr Moir questioned the appellant about the blood, he said to Mr Gomis and Mr Kett, 'I thought you said I cleaned - cleaned it all off'.[309]

197 Mr Moir said that he purchased a half weight of methylamphetamine from the appellant for $350. When the appellant came back out again, Mr Moir noticed that the blood had been washed off.[310]

198 On Sunday 16 February 2014, Mr Moir again visited 9 Hamilton Street.

199 He said that the appellant physically was 'just so far gone'.[311] Mr Moir said words to the effect of, 'I haven't seen you like this. Like, you're scary'. He said that the appellant responded by saying, 'I should - I should glass you'.[312]

200 Mr Moir noticed that the appellant had black soot on his face, nose and a bit around his hands.[313]

201 In cross-examination by the appellant's counsel, Mr Moir agreed that at the relevant time he had 'a fairly decent [methylamphetamine] habit'.[314] Mr Moir rejected the suggestion that, by reason of that habit, he had not remembered things exactly as they occurred.[315]

202 Mr Moir agreed that it was Mr Roberts who had asked him questions about Mr Davies' phone number and that it was Mr Roberts who said that he wanted to catch up with Mr Davies.[316]

203 Mr Moir agreed that he did not say in his police statement, dated 27 February 2014, that on the night of 14 February 2014 the appellant was 'well and truly cooked'.[317]

204 When asked by defence counsel, Mr Moir described the appellant as 'a good bloke'. Mr Moir agreed with the suggestion that the appellant 'appeared to be a bit off his head even when he wasn't off his head'.[318]

205 Mr Moir confirmed that when he saw the appellant on the afternoon of 15 February 2014, the appellant was not behaving as he had on previous occasions.[319]

206 In cross-examination by Mr Kett's counsel, Mr Moir agreed that he heard the appellant and Mr Roberts say that they were going to 'sort it out' with Mr Davies. Mr Moir added that it was said in the heat of the conversation and that he thought they 'seemed annoyed at him [Davies]'.[320]

207 Mr Moir agreed with Mr Kett's counsel that he (Mr Moir) was 'off [his] face' on the weekend during which Mr Davies was killed.[321]

208 Under cross-examination by Mr Roberts' counsel, Mr Moir agreed that when he saw Ms Kearsley on 15 February 2014 he thought that she was 'off her head as well on drugs'.[322]

209 Mr Moir denied that over the weekend commencing 14 February 2014 Mr Davies was never mentioned.[323]

210 Mr Harrison met Mr Kett and then the appellant in approximately September 2013.[324] Mr Kett came to his house on the morning of 16 February 2014. Mr Harrison testified as to a conversation he had with Mr Kett that morning. As this conversation was only admissible against Mr Kett, it is unnecessary to summarise it.

211 Relevantly, while Mr Harrison and Mr Kett were driving in the direction of Leonora on 16 February 2014, Mr Kett received a number of telephone calls from the appellant. Mr Kett put one of the calls on loudspeaker. Although Mr Harrison could not hear very much, he heard the appellant say, 'It's on' and the word 'fuckhead'.[325]

212 Shortly after this, Mr Harrison turned the car around with the object of taking Mr Kett to the Kambalda police station.[326] At a roadhouse in Kambalda Mr Harrison called the police. While he and Mr Kett waited for the police to arrive, Mr Kett got more calls from the appellant, but he did not answer them.[327]

213 Mr Harrison was not cross-examined by counsel for the appellant.[328]

214 In cross-examination by counsel for Mr Gomis, Mr Harrison confirmed that in his police statement made on 16 February 2014, he wrote that the appellant said to Mr Kett, in the telephone conversation the witness heard on loudspeaker, 'Be back in 20 minutes or it's on. Don't be a fuckhead'.[329] Mr Harrison said that although he no longer recalled that statement, he appeared to accept that that was what the appellant said.[330]

215 Immediately after Mr Harrison's evidence, the trial judge warned the jury that the evidence he gave concerning the conversation with Mr Kett at his home was admissible only against Mr Kett and could not be used against the appellant, Mr Roberts or Mr Gomis 'in any way at all'.[331]

216 The appellant's counsel took no exception to this direction.[332]

217 Mr Reynolds testified that he first met Mr Roberts 'over 20 years ago' and that they worked together 'about 24 years ago'[333] and used to kangaroo shoot together.[334] Mr Reynolds testified that over time Mr Roberts acquired experience in cutting up a kangaroo.[335] Mr Reynolds testified that, compared to him, Mr Roberts' skills were 'very good'.[336] In cross-examination by the appellant's counsel, Mr Reynolds described Mr Roberts as being very proficient in boning a kangaroo.[337] Mr Reynolds said that Mr Roberts always had sharp knives.[338]

218 Mr Naylor was a long-term user of illicit drugs including, in 2013 and 2014, methylamphetamine. He was also a taxi driver in the Kalgoorlie-Boulder area. At the beginning of 2014, he formed a relationship with Ms Kearsley.[339]

219 Mr Naylor also knew the appellant. The appellant assisted him to obtain methylamphetamine.[340] Mr Naylor recalled an occasion closer to Christmas in 2013 when Mr Naylor, in company with the appellant, went to 9 Hamilton Street to obtain drugs. On this occasion, the appellant introduced Mr Naylor to Mr Roberts. In doing so, the appellant referred to Mr Roberts as 'my best mate'.[341]

220 Mr Naylor testified that he knew Mr Davies and that he bought drugs from him.[342]

221 Mr Naylor was not cross-examined by counsel for the appellant.[343]

222 During cross-examination by counsel for Mr Roberts, Mr Naylor said that while he and Ms Kearsley used drugs together, he did not buy drugs from her. However, he recalled an occasion where she provided the drugs.[344]

223 Mr Naylor did not recall driving Ms Kearsley to 9 Hamilton Street at 8.00 or 9.00 pm on 15 February 2014.[345]

224 Mr Naylor said that he picked up Ms Kearsley on the morning of 16 February 2014. He agreed with the proposition that, in the course of their journey, 'She was going crazy'.[346] Mr Naylor said that although he wanted to take her to the police station, she got out of the car near Mr Roberts' house.[347]

225 Dr Spark is the forensic pathologist who conducted the post-mortem on Mr Davies' body.

226 She ultimately determined that the cause of his death was consistent with multiple injuries.[348]

227 Dr Spark was given leave to refer to her confidential report to the coroner.[349] Her evidence-in-chief was consistent with that report.

228 Mr Davies' body had been decapitated and dismembered into nine separate parts.[350] There were external and internal decompositional changes.[351]

229 Dr Spark found that the decapitation and dismemberment of the body had been effected by a sharp implement or implements, and she noted multiple penetrating sharp-force injuries adjacent to the dismemberment margins.[352]

230 In Dr Spark's opinion, the dismemberment margins were consistent with the use of the machete found in the wheelie bin at 9 Hamilton Street.[353]

231 Dr Spark was of the opinion that the dismemberment margins were also consistent with the use of a knife, which was also found in the wheelie bin.[354]

232 In cross-examination by counsel for the appellant, Dr Spark expressed the opinion that the dismemberment margins appeared to have required some skill or prior experience.[355]

233 Dr Spark observed multiple penetrating sharp-force injuries, as follows:[356]

• to the right ear;
• at least four to the right side of the neck;
• to the front of the neck;
• on the right hand;
• two to the right lower leg; and
• to the right foot.

234 Dr Spark observed multiple incised sharp-force injuries to:[357]

• both upper arms;
• both hands;
• left thigh and lower leg;
• abdomen; and
• left buttock.

235 Dr Spark also observed the following blunt-force injuries:[358]

• multiple lacerations on the top and to the back of the head;
• laceration on the right cheek;
• multiple lacerations of and around the right side of the mouth and a laceration around the left side of the mouth;
• multiple bruises with underlying haemorrhage to the forehead, left temple, around the left eye, left cheek, and multiple bruises to the limbs and torso; and
• fracture of the left side of the hyoid bone, the outer third of the spine of the left scapula and the right greater horn of the thyroid cartilage.

236 The dismemberment margins and injuries suffered by Mr Davies were depicted in a series of 15 diagrams.[359] The injuries are extensive and occur virtually from head to toe. In total (leaving aside injuries consistent with dismemberment), Dr Spark identified 37 sharp-force injuries and 42 other injuries.[360]

237 With respect to the injuries to the neck, Mr Davies' jugular and subclavian were damaged. Dr Spark said that she would expect significant bleeding from these injuries, which could be fatal.[361]

238 In Dr Spark's opinion, the injuries to the neck which resulted in the damage to the jugular and subclavian blade could have been inflicted by a black-handled samurai sword, marked JME144,[362] or by a knife, marked JME252,[363] or by another knife, marked JME27.[364] All of the sharp-force injuries were consistent with implements found by the police at both 45 Ware Street and 9 Hamilton Street.[365]

239 In cross-examination by the appellant's counsel, Dr Spark said that a penetrating sharp-force injury to Mr Davies' right calf, which was numbered injury 25, could have breached the posterior tibial artery. However, Dr Spark did not conduct a separate investigation to see whether or not the artery had been breached. If it had been breached, Dr Spark would have expected quite significant bleeding.[366] She said it was possible that the injury could have caused an upward spurting pattern of blood. She was not asked about the force of such spurting.[367] The sharp-force injury to the leg, in conjunction with the other injuries, could have contributed to the blood loss which sped up death.[368]

240 With respect to the bleeding from the damage to the veins in the neck, Dr Spark would have expected a loss of consciousness within a matter of minutes, and if no pressure was applied to the injury, death could also occur in a matter of minutes as a result of blood loss.[369]

241 In Dr Spark's opinion, a significant amount of force was required to inflict the injuries that she saw on the top of Mr Davies' head. She expected that the linear lacerations she described would have been inflicted by a long instrument that was either heavy or moving fast.[370]

242 Because of decompositional change, it was not possible to determine if Mr Davies had suffered any brain injury.[371] However, having regard to the external injuries Dr Spark observed, she would have expected there to have been a degree of brain injury.[372] The absence of skull fractures did not equate with an absence of significant brain injury.[373]

243 The fracture of the hyoid bone indicated that there was some kind of blunt-force or compressive injury to the neck, either by application of an instrument and a blunt force, or a compression of circumferential force around the neck. Injury to the hyoid bone may occur in cases of strangulation.[374] Dr Spark was unable to say whether this injury occurred before or after death.[375]

244 In Dr Spark's opinion, the removal of Mr Davies' right ring finger occurred before death.[376]

245 The fracture of the left scapula was consistent with a significant degree of blunt force to the shoulder blade area.[377]

246 At the end of her examination-in-chief, the prosecutor asked Dr Spark about the cause of Mr Davies' death. Dr Spark answered:[378]

So there are a number of possibilities. I'm - I'm not able to say definitively what caused his death, but the potential causes of death would be - so the blunt-force injuries to the head, the penetrating injury to the neck, injury number 32, the blunt-force or compressive injury to the neck, which was indicated by the fractures of the hyoid bone and the cartilage, and - or any combination of the above, and also I can't say whether or not he was alive at the time of dismemberment. So it may have been that he - he had been injured by the previous - by the previous injuries but was still alive at - at the point of dismemberment and I'm unable to - to say.

247 However, Dr Spark went on to say that, given the degree of blood loss shown in the photographs taken at 45 Ware Street and assuming that the head injuries occurred at that location, it was unlikely that Mr Davies survived to dismemberment.[379]

248 Dr Spark's findings were not significantly challenged in cross-examination by defence counsel. Blunt-force injuries which were observed on Mr Davies' hands may have been caused by him delivering a punch.[380] The blunt-force injuries to Mr Davies' face and eyes could have been caused by one or two punches.

249 Dr Spark was unable to say how many weapons may have been used against Mr Davies, or how many offenders there were.[381]

250 Mr Egan is a forensic scientist with the forensic biology laboratory at PathWest.[382] He is experienced in the examination of items to determine whether there is DNA on those items, and then the determination of DNA profiles that might be obtained from such material.[383] His expertise was not challenged.

251 Mr Egan undertook a DNA analysis of many items in connection with the death of Mr Davies, including items from 45 Ware Street and 9 Hamilton Street.

252 Mr Egan wrote two reports setting out his findings dated 13 March 2015 and 31 March 2015 respectively. The report dated 13 March 2015 was tendered in its entirety without objection.[384] A two-page document which formed part of the report dated 31 March 2015 was tendered by consent.[385]

253 Mr Egan's oral testimony, in large part, reflected the contents of these documents. For present purposes, it is convenient to refer to them in this summary.

254 The police recovered, from the floor in the kitchen/living area at 45 Ware Street, a large, heavy axe handle, identified as JME143.[386] A mixed DNA profile, consistent with coming from two people, was recovered from a stain on the middle section of the axe handle, from which it was ascertained that Mr Davies and the appellant were considered to be possible contributors. Statistical evaluation comparing the sample with Mr Davies' DNA suggested that Mr Davies was greater than 100 billion times more likely to have been a contributor to the mixed DNA profile than an unknown individual, based on Australian population data. (All further statistics cited in relation to the DNA evidence arise from Mr Egan's reports which indicate that the analyses were based on Australian population data.) The appellant was approximately 380,000 times more likely to have been a contributor to the mixed profile than an unknown individual. A mixed DNA profile was also recovered from the round end of the axe handle which revealed that Mr Davies and the appellant were contributors. Statistical evaluation revealed that both Mr Davies and the appellant were greater than 100 billion times more likely to have been a contributor to that mixed profile than unknown individual.[387]

255 The square end of the axe handle revealed a mixed DNA profile consistent with the DNA profiles of Mr Davies and Mr Roberts. The result was inconclusive with respect to the appellant.[388]

256 A black-handled samurai sword was found by police on the kitchen bench near the sink in the kitchen/dining area at 45 Ware Street. This sword was item JME144.[389] The total length of the sword was 455 mm with a blade length of 255 mm and a blade width, at its widest point, of 27 mm. The edge was curved and the tip was pointed.[390] A DNA profile was recovered from a stain on the tip of the blade which was consistent with Mr Davies' DNA profile. A mixed DNA profile consistent with having come from three people was found on the handle of the sword. Both Mr Davies and the appellant were each greater than 100 billion times more likely to have been contributors to the mixed DNA profile than an unknown individual. A mixed DNA profile from the handguard on the handle side of the weapon also showed a mixed DNA profile in which Mr Davies and the appellant were likely contributors. The statistical likelihood that the appellant was a contributor was, again, greater than 100 billion times more likely than an unknown individual.

257 Mr Gomis, Mr Kett and Mr Roberts were excluded as contributors to the DNA profile recovered from the handle and the handguard.

258 A bloodstained, white cardboard roll was found in the kitchen/living area at 45 Ware Street. The cardboard roll was item JME201.[391] A number of fingerprints were lifted from the cardboard roll and mixed DNA profiles were recovered. In two of those profiles (stains A and B), Mr Davies was a possible contributor, being greater than 100 billion times more likely to have contributed than an unknown individual. In stain A, the appellant, Mr Gomis, Mr Kett and Mr Roberts were excluded, but in stain B, the appellant was found to be greater than 100 billion times more likely than an unknown individual to have been a contributor. Mr Gomis, Mr Kett and Mr Roberts were excluded. In stain C, the appellant was found to be 350,000 times more likely than an unknown individual to be a contributor.[392]

259 Police found two cable ties joined together in the kitchen/living area at 45 Ware Street, which were marked JME202.[393] A mixed DNA profile consistent with coming from three people was recovered from the rough sides of the cable ties and was consistent with Mr Davies and the appellant being contributors. It was 830 million times more likely that the appellant was a contributor to that mixed DNA profile than an unknown individual.[394]

260 A transfer pattern of blood on the side of a refrigerator at 45 Ware Street was found to contain a mixed DNA profile from Mr Davies and the appellant. The appellant was 61 billion times more likely than an unknown individual to have been a contributor to that DNA profile.[395]

261 The police took a swab from a passive spatter transfer on a cushion that was found on the floor in front of a couch. A DNA profile taken from the swab was consistent with the appellant's DNA profile: it being greater than 100 billion times more likely that the appellant contributed to that profile than an unknown individual.[396]

262 A single DNA profile was recovered from a swab taken from the wall near the doorframe to a robe at 45 Ware Street. This revealed a DNA profile consistent with that of the appellant, with the same statistical outcome as for the DNA profile found on the cushion.[397]

263 The police recovered a mixed DNA profile on a benchtop at 45 Ware Street, in which Mr Davies and the appellant were contributors, each with the same statistical outcome as previously stated.[398]

264 A swab taken from the dishwasher handle at 45 Ware Street revealed a mixed DNA profile consistent with having come from three people, with it being 50,000 times more likely that the appellant as opposed to an unknown individual was a contributor.[399]

265 Mr Egan testified that surfaces (such as tape) which are glossy and smooth are not 'great surface[s] to retain DNA'.[400] This is a matter of some relevance with respect to the items found at both 45 Ware Street and 9 Hamilton Street which had handles wrapped in gaffer tape. One such item was the machete which was located at 45 Ware Street. However, it was found to have a DNA profile consistent with that of Mr Davies on the tip of the blade, it being greater than 100 billion times more likely that Mr Davies and not an unknown individual had contributed to that profile. Significantly, a knife found at 9 Hamilton Street, the handle of which was covered with gaffer tape, revealed DNA profiles consistent with Mr Davies' DNA profile on both the blade and a piece of tape taken from the handle with the same statistical outcome as that just stated.[401]

266 A DNA profile consistent with Mr Kett's DNA profile was only found on a cigarette butt and a cable tie, both of which were located by police at 45 Ware Street. A rusty metal bar was also located at 45 Ware Street.[402] A DNA profile taken from one end and the middle of the bar was consistent with Mr Davies' DNA profile and it was greater than 100 billion times more likely that he had contributed to that profile than an unknown person.

267 Ms Hewitt is a first class constable with the Western Australian police. She is a fingerprint expert.[403] She attended at 45 Ware Street and 9 Hamilton Street between 20 and 25 February 2014. She examined those scenes for fingerprints.[404]

(a) a cardboard roll located at 45 Ware Street;[405]

(b) the kitchen tap mixer at 45 Ware Street: these fingerprints were made as a result of blood on the hands touching the mixer;[406] and

(c) pieces of broken wooden furniture at 45 Ware Street.[407]

269 The appellant's fingerprints were identified on the following items found at 9 Hamilton Street:

(a) a Black and Gold bleach bottle;[408]

(b) a detergent bottle found in the bathroom;[409] and

(c) on the blade of a knife that was located in the backyard, marked JME252.

270 Constable Hewitt said that the fingerprint was a right index finger, the top of which had been pointing towards the sharp edge of the knife.[410] This knife also had Mr Davies' DNA on it.[411]

271 Mr Spivey is a sergeant with the Western Australian police who has expertise in bloodstain pattern analysis. He prepared a bloodstain report with respect to the bloodstains observed at 45 Ware Street.[412]

272 It is unnecessary to summarise in detail Sergeant Spivey's evidence. He observed a blood pool in the kitchen consistent with Mr Davies lying in that location with a bleeding injury or injuries for a period of time.[413] There were a number of drip stains, transfer stains and spatter stains in the kitchen/living area, which suggested that Mr Davies had moved around these areas or had come into contact with the walls and furniture.[414]

273 In Sergeant Spivey's opinion, the appellant had Mr Davies' blood on his hand when he touched the kitchen tap mixer.[415]

274 Sergeant Spivey observed a swipe bloodstain pattern commencing from the bottom of the dishwasher in the kitchen that went through the doorway into the rear room, indicating that a bloodstained object with a significant amount of blood had been moved or dragged across the floor. The fact that the drag marks stopped in the rear room could be consistent with the body being placed into a bag, in that the blood source was no longer in contact with the floor.[416]

275 Sergeant Spivey concluded that the appellant would have been present inside 45 Ware Street. He was unable to conclude whether Mr Gomis, Mr Kett or Mr Roberts were inside the premises, as no liquid blood belonging to them was found there.[417]

276 Sergeant Spivey gave no evidence to the effect that blood spurted onto the walls of the areas he examined.

277 Senior Constable Tricker arrested the appellant at 9 Hamilton Street on 16 February 2014.[418] He said that the appellant seemed 'very calm, very collected'[419] and that he did not appear to be intoxicated.[420]

278 Senior Constable Tricker observed a wheelie bin near the rear entry to the premises.[421]

279 Senior Constable Lee is a forensic investigation officer. He forensically processed the appellant on 16 February 2014, commencing at about 7.30 pm.[422] He observed that there was a small injury on the appellant's left temple and 'a couple' of cuts to the appellant's left hand.[423] He said that the appellant's right hand was visibly swollen.

280 Senior Constable Lee took photographs of the appellant.[424]

282 Constable Anton testified that while he was guarding the appellant on 17 February 2014, the appellant said, at different times:[425]

I bashed that cunt pretty bad. I did the crime so I should do the time.

What happened was tragic but he had it coming to him. He ripped a lot of people off and owed a lot of people money. A lot of people were looking for him.

283 Constable Anton observed that the appellant's right hand appeared quite swollen when compared to his left hand.[427] The appellant was treated at the Kalgoorlie District Hospital, where his hand was X-rayed and found to have been broken. The appellant's hand was put in plaster and then a sling was applied.[428]

284 In cross-examination, Constable Anton denied that the appellant told him he had hit Mr Davies 'very hard', but he did remember the appellant saying that he had hit Mr Davies.[429]

285 In examination-in-chief, the appellant testified that he had been a user of methylamphetamine for 20 years and in the week or so before Mr Davies death, he had been using every day.[430]

286 The appellant said that he had known Mr Roberts for over 10 years and that they had an excellent relationship. In the months leading up to Mr Davies' death, Mr Roberts supplied him with methylamphetamine.[431]

287 The appellant said that he knew Mr Kett and Mr Gomis.

288 The appellant recalled an occasion when Mr Davies and Mr Kett came to him for drugs. The appellant testified that he introduced them to Mr Roberts. Apart from this occasion, the appellant had no prior contact with Mr Davies.[432]

289 The appellant understood, from what he had been told by Mr Roberts, that Mr Davies was 'moving a lot of gear' for Mr Roberts.[433] The appellant came to understand that Mr Davies owed money to Mr Roberts.[434] The appellant thought that Mr Roberts was more embarrassed and upset about the debt rather than aggressive.[435] The appellant said that Mr Davies did not owe him any money.[436]

290 The appellant said that in the early hours of 15 February 2014, Mr Kett texted him wanting 'to score some gear'.[437] The appellant and Mr Kett went to Mr Roberts' house, where Mr Kett purchased some methylamphetamine and 'shot up'.[438]

291 The appellant recalled that Mr Kett arranged to meet Mr Davies that morning at a bottle shop because Mr Davies owed Mr Kett money.[439]

292 The appellant said that at about 4.00 am on 15 February 2014, he, Mr Kett and Mr Roberts drove to meet Mr Davies. Mr Roberts dropped Mr Kett off at the bottle shop, but Mr Davies did not turn up for the meeting.[440]

293 The appellant and Mr Roberts then picked Mr Kett up and drove to the BP service station, so that Mr Kett could meet Mr Davies.[441]

294 Mr Roberts drove Mr Kett to the BP service station, but Mr Davies was not there.

295 The appellant said that, later that morning, he went home, had a shower, ate breakfast and did some washing. He then returned to Mr Roberts' house. By this stage, Mr Kett and Mr Gomis were there.[442] According to the appellant, Mr Gomis said that he had been 'ripped off' by Mr Davies.[443]

296 The appellant testified that all four men drove to Mr Davies' house.[444]

297 When the appellant was asked by his counsel why he went with the other men, he said:[445]

Everyone - everyone was going you know. It was just - just a little field trip. I - I - there was no - you know, it was just, we're - we're going down to see Beau, you know.

298 The appellant said that there was no bicycle bag in the car and he did not see any weapons.[446] He said that there was no discussion about what was going to happen at Mr Davies' house.[447]

299 The car in which the men were travelling entered Mr Davies' property from a laneway. Their vehicle was parked inside the gates within the perimeter of 45 Ware Street.[448]

300 The appellant testified that Mr Kett banged on a sliding door, and Mr Roberts yelled to Mr Davies to 'open up'.[449] Mr Davies unlatched the rear sliding door, and the appellant said that he opened it and then entered the house.[450]

301 The appellant said that when he entered the house, he noticed that Mr Davies was motioning towards some weapons, including a machete and a couple of bars.[451] The appellant said that he tried to get between Mr Davies and the weapons. However, Mr Davies tried to grab either a machete or a bar and, at this point, he tackled Mr Davies and they started fighting.[452]

302 The appellant said that he punched Mr Davies and, in the process, broke his hand. The appellant said that he punched Mr Davies to the head and that he knocked him to the ground. The appellant testified that he hit Mr Davies because Mr Davies was trying to get a machete.[453]

303 According to the appellant, he got Mr Davies to a point where he (Mr Davies), in effect, gave up, saying words such as, 'All right man. All right man'.[454]

304 The appellant testified that Mr Kett then came in and started smashing Mr Davies across his leg with a steel rod like the 'steel reinforcing that ... you'd use in concrete'.[455] The appellant said that Mr Kett then struck Mr Davies to the top of the head with the rod.

305 The appellant said that he disarmed Mr Kett.[456] The appellant testified that he, Mr Kett and Mr Davies then walked to the lounge room, where Mr Davies sat on a couch. According to the appellant, Mr Kett yelled 'where's my money?'.[457] By this stage, Mr Gomis had entered the house.

306 The appellant recalled a discussion which mainly involved Mr Kett, but could have also involved Mr Roberts and Mr Gomis 'about monies owed'.[458]

307 Mr Davies asked for a glass of water, which Mr Gomis gave him. However, the appellant smashed it out of his hand.[459] After this, another fight broke out. The appellant said that Mr Davies made a lunge either for the appellant or for a tomahawk. In the process, Mr Davies inadvertently 'collected' Mr Gomis. Mr Gomis and Mr Davies engaged in some pushing.[460] Mr Davies then turned his attention to the appellant. He tried to tackle the appellant, who was standing in front of where a tomahawk was located.[461] The appellant was lifted off the ground, and both men went crashing through a television, a cabinet and a coffee table.[462]

308 The appellant said that they wrestled on the floor. The appellant said he was 'pretty dazed'.[463]

309 The next thing the appellant recalled was that Mr Kett and Mr Roberts started wrestling with Mr Davies. Eventually, they were able to cable-tie Mr Davies.[464] The appellant denied that he was involved in cable tying Mr Davies.[465]

310 The appellant said that while Mr Davies was cable-tied, Mr Kett punched into Mr Davies with his left and right fists.[466] According to the appellant, Mr Roberts said:[467]

Look mate I'll - I'll give you a chance. You - you can fucking work - work off your debt.

311 Mr Davies responded by spitting at Mr Roberts. In response, Mr Roberts punched Mr Davies to the side of the head.

312 The appellant said that his recollection was 'hazy', but he recalled that Mr Davies was lying with his head either on or near the dishwasher.[468]

313 The appellant said that Mr Kett was 'ransacking' the house.[469] The appellant decided to stay with Mr Davies and was saying to him that he had better 'pay these guys back'.[470]

314 The appellant testified that Mr Davies said that there was some money in a Jim Beam fridge. Mr Kett, who, the appellant noticed, went to the fridge, took off some gloves he was wearing, but found no money in it.[471]

315 At one point, the appellant said that he got Mr Davies a pillow and put it under his head.[472] He noticed Mr Davies was bleeding. The appellant said that he gave him drinks and checked his wounds. He said that he gave Mr Davies drinks from a bottle of water that he had filled from the kitchen tap. The appellant testified that, in this process, his blood and Mr Davies' blood were all over the drink bottle.

316 The appellant agreed that he put his left palm print on the tap mixer in the kitchen sink.[473]

317 By this time, the appellant testified that his hand was 'in mobs of pain'.[474] After giving Mr Davies water, the appellant described how Mr Kett flew out of the bedroom area with a plastic-covered axe handle and 'went to town' on Mr Davies.[475]

318 The appellant said that he was dismayed by this and that he took the axe handle from Mr Kett with his left hand.

319 The appellant said that he had no recollection of the samurai sword on which his DNA was found. Nor could he say how his DNA and fingerprints were found on the cardboard roll.[476]

320 The appellant recalled that Mr Kett found the safe. He then recalled Mr Kett kicking Mr Davies to his 'tummy' region.[477] The appellant said that he told Mr Kett to calm down. Instead of calming down, Mr Kett produced a knife and stabbed Mr Davies in the leg.[478] The appellant described how blood gushed from the wound 'two-thirds of the way up to the roof'.[479] The appellant said that he took the knife from Mr Kett. In doing so, the appellant indicated that he used his right hand.[480] The appellant thought the knife he took out of Mr Kett's hand was a white-handled knife. He was unable to confirm that exhibit 99 was the knife he took from Mr Kett's hand.[481]

321 The appellant said that he put the knife on the sink and that he tried to put pressure on Mr Davies' inside thigh, where he understood a main artery was located, to stop the bleeding.[482]

322 The appellant testified that Mr Kett began throwing petrol inside the house. He thought 'they' were going to set the house on fire.[483] As a result, he dragged Mr Davies from the area of the dishwasher towards the glass doors through which they had entered.[484] There, he, Mr Roberts and Mr Kett placed Mr Davies in a 'huge' bag near the door. The appellant did not know who had placed the bag near the door.[485]

323 The appellant said that the bag into which Mr Davies had been placed was taken to the car. He, Mr Roberts, Mr Gomis and Mr Kett then drove to Mr Roberts' house. According to the appellant, the bag containing Mr Davies was taken into the bathroom.[486]

324 The appellant said that he had wanted to put Mr Davies on a road so that 'hopefully someone would drive past'.[487]

325 The appellant said that he checked on Mr Davies 'a couple of times', but he was unable to tell if he was still breathing.[488]

326 The appellant said that Mr Gomis lit a fire into which the appellant threw his shoes, socks and shirt.

327 The next thing he did was assist Mr Roberts in putting Mr Davies' body in the bathtub.[489] The appellant was unaware of why Mr Roberts wanted to do this.[490] The appellant said that he brought a wheelie bin into the bathroom.[491] Mr Roberts then proceeded to dismember Mr Davies' body.[492] The appellant denied any direct involvement in the dismemberment of the body. He said that neither Mr Gomis nor Mr Kett had anything to do with it.[493] The appellant said that Mr Davies' body was dismembered before Ms Kearsley had returned to the house.[494]

328 The appellant recalled that at about 6.00 pm on 15 February 2014, Mr Moir came to the house for some 'gear'.[495] The appellant did not deny that he had blood on him.[496]

329 The appellant said Mr Gomis and Mr Kett went to get some bleach. He denied behaving in a threatening way towards them.[497]

330 The appellant said that he told Ms Kearsley when she got home 'that there was a bit of shit going down'.[498] He said that Ms Kearsley wanted to be part of the clean-up. The appellant denied behaving in a threatening way towards her.[499]

331 The appellant said that he stayed overnight at Mr Roberts' house. He recalled that Ms Kearsley came and went in Mr Roberts' car, which included driving to McDonald's.[500]

332 The appellant agreed that Ms Kearsley left with Mr Kett some time on the morning of 16 February 2014.[501]

333 The appellant's counsel drew to his attention that a toilet seat had been found in the wheelie bin. The appellant agreed that the seat had been on the toilet in the bathroom and that he had removed it.[502] The appellant also agreed that he helped remove the bathroom door. He said the door was cut up and put in the fire.[503]

334 The appellant agreed that he telephoned Mr Kett at about 11.30 am on 16 February 2014 for the purpose of finding out whether he was going to return to 9 Hamilton Street and help clean up.[504]

335 The appellant agreed that at about lunchtime Mr Moir came over. When defence counsel reminded the appellant of Mr Moir's evidence that he (the appellant) was behaving 'scarily', the appellant responded that he was 'frantic'.[505]

336 The appellant recalled being arrested that afternoon.[506] At this point, he was under the influence of drugs.[507]

337 Defence counsel put to the appellant the admissions he allegedly made to Constable Anton. The appellant denied that he said the words 'I bashed that cunt pretty bad. I did the crime so I should do the time'.[508]

338 He did not recall saying, 'What happened was tragic, but he - but he had it coming to him' and, 'He ripped a lot of people off and owed a lot of people money. A lot of people were looking for him'.[509] The appellant agreed that he said, 'I'll put my hand up', but that was not in the context of him killing Mr Davies.[510]

339 Towards the end of his examination-in-chief, the appellant said that he did not go to 45 Ware Street intending to get into a fight with Mr Davies. Nor did he go there intending to kill Mr Davies or rob him. The appellant denied going there with any expectation that any of those things would happen.[511]

340 In cross-examination by counsel for Mr Gomis, the appellant denied obtaining drugs from either Mr Davies or Mr Kett.[512]

341 In cross-examination by defence counsel for Mr Kett, the appellant referred to his relationship with Mr Roberts as 'very close'. He thought of Mr Roberts as his 'best friend'.[513] The appellant said:[514]

I - he - he would have done anything for me anyway and - and I would have done the same.

342 The appellant disagreed with Ms Kearsley's characterisation of him as Mr Roberts 'protector'.[515]

343 The appellant said that it was common knowledge that Mr Davies owed money to others, and he learned that this included Mr Roberts and Mr Kett. However, the appellant said that Mr Davies did not owe anything to him.[516] Once again, the appellant denied that he was dealing in drugs, although he agreed that he brought people to the house in order to purchase drugs from Mr Roberts.[517]

344 The appellant said that Mr Roberts was not worried about the debt owed to him by Mr Davies. Instead, he seemed 'more hurt and upset by it'.

345 The appellant denied that there was any plan to 'get and go after' Mr Davies.[518]

346 The appellant said that he did not see anyone bring anything from the car into Mr Davies' house.[519]

347 The appellant said that Mr Kett was 'smashing' on Mr Davies' door. He said that eventually Mr Davies unlocked the door and he (the appellant) went in first.[520] The appellant denied forcing his way into the house and he agreed with defence counsel's proposition that Mr Davies invited him in.[521]

348 As to the events inside Mr Davies' house, the appellant essentially maintained the version he gave in examination-in-chief. In particular, that most of the aggression towards Mr Davies came from Mr Kett, and that the appellant tried to protect Mr Davies from Mr Kett.

349 When defence counsel drew attention to the forensic pathologist's characterisation of the injuries to the jugular vein and the compression of the neck as possible contributors to Mr Davies' death, the appellant avoided the subsequent question, replying, 'There was no cause of death, was there?'.[522]

350 The appellant denied participating with Mr Roberts in the dismemberment of Mr Davies' body.[523] The appellant said that he was outside the bathroom when this occurred.[524]

351 The appellant denied the following propositions that were put to him by Mr Kett's counsel:[525]

(a) Mr Roberts produced a metal bar at 45 Ware Street and struck Mr Davies' head with it;

(b) the appellant beat Mr Davies around his head, body and legs;

(c) that the appellant was smiling, laughing and joking while he was 'beating up' Mr Davies; and

(d) the appellant and Mr Roberts handled the cable ties.

352 With respect to his behaviour toward Mr Kett back at 9 Hamilton Street, the appellant said that he 'was annoyed that [Mr Kett] killed [Mr Davies]'.[526]

353 The appellant denied stabbing Mr Davies.[527]

354 The appellant agreed that when he saw Mr Davies bleeding on the kitchen floor, he knew that Mr Davies was in very serious danger. However, he did not call an ambulance because he was 'in shock'.[528] The appellant said, 'I just disassociated myself with it'.[529]

355 The appellant agreed that on the morning of 15 February 2014, Mr Kett appeared upset that Mr Davies had not shown up to either of the meetings that had been arranged earlier.[530] Further, Mr Kett spoke about being 'ripped off' by Mr Davies and said that he wanted his money back.[531]

356 The appellant denied the proposition that he went to Mr Davies' house with the others in the hope of being able to get drugs or money.[532]

357 The appellant denied that he went along as 'muscle' to collect money from Mr Davies.[533]

358 The appellant maintained that Mr Roberts was at 45 Ware Street when Mr Davies was killed. However, he said that Mr Roberts was not involved in the death of Mr Davies.[534]

359 When defence counsel put to the appellant that no steel reinforcing rod had been found at 45 Ware Street or at 9 Hamilton Street, the appellant stood by his evidence that such an implement had been used.[535]

360 The appellant denied cutting his hand on the samurai sword. He pointed out to defence counsel that his DNA was not found on the handle of that sword. He said he had no recollection of seeing a samurai sword and that he did not handle it.[536]

361 The appellant denied that Mr Davies' finger was cut off at 45 Ware Street. Moreover, the appellant denied that Mr Davies was stabbed in the neck at that address.[537] According to the appellant, the only injuries Mr Davies suffered were a split head and the stab wound to the calf.[538]

362 The appellant denied that after Mr Davies had been disabled and severely injured, he and Mr Kett ransacked the house.[539]

363 The appellant confirmed that he disarmed Mr Kett of the reinforcing rod, then of the axe handle, and then of the knife.[540]

364 The appellant accepted that he knew that Mr Davies was in very serious danger when Mr Davies was bleeding on the kitchen floor. However, the appellant repeated that he did not think to call an ambulance. The appellant maintained he was 'in shock'.[541]

365 Nevertheless, shortly after the appellant left Mr Davies' house, he returned to retrieve his mobile phone, his cigarettes and his shoe.[542]

366 The appellant maintained that he attempted to rescue Mr Davies.[543]

367 The appellant agreed that when he was inside 45 Ware Street, he formed the view that Mr Davies was dead or that he was close to it.[544]

368 The appellant maintained that he did not dismember Mr Davies, but he agreed that he screwed up paper and placed the paper, along with some wood, into the bin with the intention of making a fire to destroy the remains.[545]

369 The appellant denied causing Mr Davies' death. He asserted that Mr Davies died by a stab wound to the leg, and he was not involved in the infliction of that wound.[546]

370 The State prosecutor cross-examined the appellant at length. The appellant said that Mr Roberts and Mr Kett cable-tied Mr Davies. After Mr Davies was cable-tied, Mr Roberts and Mr Kett rummaged through the house looking for money.[547] Going to Mr Davies' house on 15 February 2014, the appellant said that he 'caught the tail end' of a discussion between Mr Gomis and Mr Roberts about a security camera at Mr Davies' house. The appellant agreed that he did not ask why there was any need to worry about a security camera. He said that he was not 'involved'.[548]

371 The appellant was unaware of the existence at 9 Hamilton Street of a pruning saw with grey insulation tape around the handle. Nor was he aware of other items at that address that were similarly wrapped.[549]

372 The appellant said that he 'didn't mind at all' assisting Mr Roberts with his drug dealing by being his middleman.[550]

373 The appellant said that he first introduced Mr Davies to Mr Roberts in December 2013. The appellant accepted that it therefore could not be correct that Mr Davies was 'moving gear' for Mr Roberts for some five to six months, or that Mr Davies had owed Mr Roberts money for four to six months.[551]

374 The appellant agreed that as at the afternoon of 15 February 2014, he knew that Mr Davies owed money to each of Mr Roberts, Mr Kett and Mr Gomis.[552]

375 The appellant agreed that he would do anything to help Mr Roberts, but that afternoon he was not asked to recover a debt.[553]

376 The appellant said that it was 'just coincidental' that 'everyone' was together at Mr Roberts' house, and that they 'all ended up going together to 45 Ware Street'.[554]

377 As the appellant recalled it, one of Mr Roberts, Mr Gomis or Mr Kett said, 'We're going to Beau's', and they 'walked out and then jumped in the car'.[555] The appellant was unable to explain why he went with them, other than 'everyone was going'.[556]

378 The appellant denied taking weapons from 9 Hamilton Street to Mr Davies' house. Specifically, he denied taking knives that had insulation tape wrapped around them.[557]

379 The appellant admitted that Mr Davies' debts to his co-accused were none of his business.[558] He volunteered that he could have stood guard at the door, instead, as he put it, he 'just opened the door and went in'.[559]

380 The appellant also admitted that once he entered the house, he realised that he was not welcome. However, he explained that he did not think too highly of Mr Davies, who owed money. He thought 'the boys' deserved to get their money and that Mr Davies could not 'consistently keep ripping people off'.[560]

381 The appellant went on to say that he did not think there was a problem with 'the boys confronting [Mr Davies] and asking for their money', but he did not know there was going to be any violence.[561]

382 The prosecutor asked the appellant why he did not leave the house after Mr Davies had been struck with the steel reinforcing rod. The appellant replied that he had 'no real moral complication or issues ... if [Mr Davies] got a bit of a slap because ... he's ripping all these people off'.[562]

383 The appellant agreed that the violence that was used in the front room (with the steel reinforcing rod) was an expected level of violence for someone who had ripped off drug dealers.[563]

384 As the appellant put it a moment earlier:[564]

[Y]ou rip drug dealers off in Kalgoorlie, like, Kalgoorlie's a pretty rough place. That's - it's - it's not going to end well. Like, it's just the way it is ... We all know it went too far in - in hindsight now. [When it started] I think the boys had every right to confront him to get his money, you know? And that's what I was thinking at the time ... I'm not on any high moral pedestal mate. I've fucking given it to Beau.

385 The appellant said that he threw the steel reinforcing rod 'towards the heater'.[565]

386 The appellant confirmed that while Mr Roberts and Mr Kett were cable-tying Mr Davies, Mr Kett struck a number of blows with his fists.[566] After Mr Davies spat at Mr Roberts, Mr Roberts hit him with his fist to the head a few times.[567]

387 Mr Davies was bound up when he was in the kitchen with his head near the dishwasher.[568] According to the appellant, Mr Kett struck Mr Davies with the axe handle, near the dishwasher.[569]

388 The prosecutor reminded the appellant of Sergeant Spivey's evidence to the effect that the blood spatter patterns in the kitchen revealed that Mr Davies was assaulted in more than one place in that area. The appellant denied that Mr Davies was ever close to where the blood spatter was in the kitchen, repeating Sergeant Spivey's assessment that 'that's transfer'.[570]

389 The appellant said that he grabbed the axe handle from Mr Kett with his left hand, and then he held it 'like you'd use a cane'.[571] The appellant denied that he said this because he was aware that his DNA had been found at the end of the axe handle.[572]

390 The prosecutor reminded the appellant of Sergeant Spivey's evidence to the effect that there were two separate pools of blood, indicating two separate incidents of blood pooling. The appellant claimed that all of the blood came from the wound to Mr Davies' calf. The appellant maintained that Mr Davies did not suffer any neck wound, nor were any of his fingers dismembered. The appellant said these events 'all happened at 9 Hamilton Street'.[573]

391 The appellant described how, when he grabbed the knife from Mr Kett, he was dragging Mr Davies away with his left hand and that he grabbed the knife with his right hand. He appeared to agree that, having regard to the fingerprints on the blade, he did this by way of a 'little pincer movement'.[574]

392 The prosecutor pointed out that under cross-examination from Mr Roberts' counsel, the appellant said that he had Mr Roberts' glasses in his hand when he took the knife from Mr Kett.

393 The appellant was at a loss to explain the presence of the cardboard roll with his fingerprints on it.[575]

394 The appellant denied that the stab wounds in Mr Davies' torso area were inflicted at 45 Ware Street. The appellant reiterated that Mr Davies was stabbed only once at 45 Ware Street, being the stab wound to the right calf.

395 The appellant admitted that he asked Mr Gomis and Mr Kett to get some bleach and some Drano.[576]

396 When Mr Davies was put into the car, the appellant said that he 'looked as bad as a bloke could look'. He repeated evidence that he had given earlier that Mr Davies was either dead or very close to it. Nevertheless, the appellant said that he was saying 'hang - hang in there', or 'we're - we're going to get you some help'. The appellant said that he said this more as a comfort to himself.[577]

397 The bag in which Mr Davies had been placed was put on the fire at 9 Hamilton Street.[578]

398 In the final part of the prosecutor's cross-examination,[579] the appellant agreed that Mr Davies was bashed about the head with at least one, if not more than one, weapon at 45 Ware Street. He also agreed that Mr Davies was repeatedly punched by him and by Mr Roberts and Mr Kett. In the end, the appellant appeared to accept that a 'bit of a touch up' on Mr Davies was expected, but it went 'way too far'.[580]

399 The appellant accepted that he was culpable in Mr Davies' death in the sense that he knew what had happened and that Mr Davies was 'bleeding out', but he failed to get any help.

400 Mr Roberts' examination-in-chief was as follows.

401 Mr Roberts said that in late 2013 and early 2014, the appellant was at his house at 9 Hamilton Street just about every day.[581] Mr Roberts said that although he had been present when kangaroos had been cut up by people such as Mr Reynolds, he did not do any of the processing work.[582]

402 Mr Roberts said that he suffered from bilateral carpal tunnel syndrome,[583] as a result of which his hands constantly tingle and lose the sensation of touch. Mr Roberts said that he was always dropping things.[584]

403 Mr Roberts said that he suffered from a number of ailments at about the time of his arrest, and that he had been diagnosed with bipolar disorder.[585]

404 From November 2013 onwards, Mr Roberts was using ecstasy in addition to prescription drugs.[586] He said that he hardly ever used methylamphetamine during that time.[587] If he did use methylamphetamine, he obtained it from Ms Kearsley. The last time he used methylamphetamine before Mr Davies' death was in the Christmas and New Year period of 2013/2014.[588]

405 Mr Roberts said that he supplied methylamphetamine that he had obtained from Ms Kearsley to Mr Moir and the appellant.

406 In the three-month period before the alleged offence, Mr Roberts saw the appellant use methylamphetamines which he supplied to him. Mr Roberts said that he did not see the appellant deal in drugs. Mr Roberts recalled observing in the 10-day period leading up to Mr Davies' death, that the appellant needed sleep. He estimated that the appellant had probably been up 'nine, ten days'.[589]

407 Mr Roberts said that he had spoken to the appellant in custody since their arrest. He said that the appellant had told him that he, Mr Kett and Mr Gomis went around to Mr Davies' house to get some drugs. The appellant told him that Mr Kett had got hold of a bar from somewhere and started 'flogging into Mr Davies'. The appellant told him that he had taken the bar from Mr Kett and that he had tried to settle the situation down.[590]

408 Mr Roberts said that Ms Kearsley moved into his house in November 2013, and that he considered that they were friends.[591]

409 Mr Roberts agreed that he travelled to Perth with Ms Kearsley in the days leading up to Mr Davies' death. He said that Ms Kearsley acquired a quantity of methylamphetamine - suggesting it was 'probably an ounce'.[592]

410 Mr Roberts knew Mr Davies. He said that he might have passed on some of Ms Kearsley's drugs to him. Mr Roberts said that at the time of Mr Davies' death, Mr Davies owed him a 'couple of hundred bucks, maybe'.[593]

411 Mr Roberts said that the last time he saw Mr Davies was in December 2013.[594]

412 Mr Roberts said that, as at 14 February 2014, he usually stored a work tool bag in his Commodore vehicle, which included spanners, screwdrivers, gloves, cable ties and other things.

413 Mr Roberts thought that the cardboard roll found at 45 Ware Street may have come from the back of his car, or from his home at 9 Hamilton Street.

414 Mr Roberts testified as to his activities on 14 February 2014. It is unnecessary to summarise this evidence.

415 Mr Roberts said that in the early hours of 15 February 2014, he supplied the appellant and Mr Kett with some drugs.[595] He said that Mr Kett wanted to contact Mr Davies. Mr Roberts drove Mr Kett to two locations, but Mr Davies did not turn up.

416 After lunch on 15 February 2014, Mr Roberts said that he did chores at home, had a shower and went to sleep. He said that he went into his room at about 3.00 pm. He said that when he went into his room, the appellant, Mr Gomis and Mr Kett were at his house.[596]

417 Mr Roberts said that he did not wake up until around 9.00 pm that night. At that time, he recalled that Mr Kett and Ms Kearsley were in the lounge room, Mr Gomis was out the back, standing by the fire, and the appellant was on a couch on the back veranda.[597]

418 Mr Roberts said that he was not involved in the dismemberment of Mr Davies' body, and was unaware that his body was in the wheelie bin.[598]

419 Mr Roberts denied that Ms Kearsley had washed him in the bathroom area. He said that he did not see any blood on the appellant, Mr Gomis or Mr Kett.[599]

420 Mr Roberts said that he took a shower, and that the only unusual thing he noticed about the bathroom was that a new shower curtain had been put up. He said that he did not know who had put it up.[600]

421 Mr Roberts said that the only big bag that he had at his house was a Puma brand cricket bag with wheels on it.[601] He testified that he did not own a bicycle bag or anything like it.[602]

422 On Sunday, 16 February 2014, Mr Lane and his wife came around to Mr Roberts' house for a chat.[603] At about 3.00 pm, Mr Roberts was arrested.[604]

423 Mr Roberts said that he had 'heaps' of cable ties at his house.[605] He denied that the axe handle was his.

424 Mr Roberts' examination-in-chief concluded with him denying that he had anything to do with the killing of Mr Davies, or with the disposal of his body.[606]

425 Under cross-examination from the appellant's counsel, Mr Roberts agreed that he must have slept through the dismemberment of Mr Davies' body in the bathroom.[607] He described the appellant's evidence that the appellant went with Mr Roberts and the other co-accused to 45 Ware Street as 'mistaken'.[608] He also said that the appellant was mistaken when he said that Mr Roberts had dismembered Mr Davies' body.[609]

426 Mr Roberts said that, to his knowledge, Mr Davies did not owe the appellant any money.[610]

427 Mr Roberts admitted that he supplied drugs to Mr Davies and to the appellant.[611]

428 When asked about the trip to Perth to purchase drugs, Mr Roberts said that the drugs that were purchased belonged to Ms Kearsley.[612]

429 Mr Roberts accepted that he could skin a kangaroo and 'pretty crudely' cut it up into pieces.[613]

430 Under cross-examination by the prosecutor, Mr Roberts denied that he was a drug dealer, and that he got Ms Kearsley to sell drugs for him.[614]

431 Nevertheless, Mr Roberts agreed that in addition to supplying the appellant, he also supplied Mr Moir and Mr Kett with drugs.[615]

432 Mr Roberts was asked about the debt owed to him by Mr Davies. He said that Mr Davies owed him some ecstasy. He explained that he had given Mr Davies $200 for some ecstasy, which Mr Davies had failed to supply.[616] Mr Roberts denied that he had supplied Mr Davies with methylamphetamine on credit.[617]

433 Mr Roberts said that Mr Coghlan was mistaken when he said in his evidence that he had heard Mr Roberts and the appellant speaking about someone who owed him money.[618] Mr Roberts said that he and the appellant could have been talking about Joe, his dog, who had just cost Mr Roberts $50 to have him released from the pound.[619]

434 Mr Roberts said that Mr Moir's testimony that he (Mr Moir) had heard the appellant and Mr Roberts saying that they were 'after him' (Mr Davies) was wrong.[620]

435 Mr Roberts said that he had never been to 45 Ware Street.[621] When the prosecutor pointed out to him that the police had found a belt with his DNA on it at 45 Ware Street, Mr Roberts said that it was his work belt, which he usually kept in his car. The implication being that somehow it had been brought into Mr Davies' house without Mr Roberts' knowledge.[622]

436 Mr Roberts maintained his denials that he had dismembered Mr Davies' body in the bathroom at 9 Hamilton Street.[623]

437 Mr Roberts admitted that the machete and the knife found in the wheelie bin belonged to him.[624] He agreed that the knife could be used as a boning knife.[625] Mr Roberts denied putting those items into the wheelie bin.

438 The prosecutor questioned Mr Roberts about the pruning saw with the insulation tape wrapped around the handle. According to Mr Roberts, he could have purchased it with the insulation tape already around it. He denied that he was in the habit of putting insulation tape around the handles of various implements.[626]

439 Mr Roberts denied that he had Mr Davies' blood on him that afternoon.[627] He agreed that he had some scratches on his body, but denied they had come from any fight or assault upon Mr Davies.[628]

440 In support of this proposed ground, the appellant submitted that:

1. The State's case that the appellant had a motive for committing the offence was 'illogical, flawed and without factual foundation'.[629] The appellant asserts that he had no motive to kill or to cause harm to Mr Davies because he was not owed any money by him, and the amount Mr Davies owed the other co-accused was only a few thousand dollars and was an insufficient reason for the appellant to kill or cause serious harm to Mr Davies.[630]
2. The appellant asserts he was not involved in the assaults on Mr Davies with weapons because he broke his right hand early in the altercation, before Mr Davies was seriously injured, and was physically incapable of using the weapons said by the State to have caused the fatal injuries.[631]
3. While his DNA and/or fingerprints were found on the weapons which inflicted injuries consistent with those suffered by Mr Davies, that evidence was consistent with his case that he was trying to prevent Mr Kett from attacking Mr Davies.[632]
4. The evidence of Dr Spark did not establish which of the stab wounds and other injuries caused Mr Davies' death.[633] The appellant asserts that the cause of Mr Davies' death could have been the stab wound to the calf, which he claims 'can hardly form intent to kill or cause serious injury'.[634]
5. With respect to the appellant's post-offence conduct, a reasonable hypothesis consistent with the evidence, and consistent with his innocence, was that he acted out of stress and panic, having been present when others had killed Mr Davies.[635]
6. The evidence of Ms Kearsley and Mr Moir was completely unreliable.[636]
7. It was not open to the jury to reject the appellant's version of events, particularly that Mr Kett inflicted the fatal injuries.

441 We will deal with the appellant's submissions in the order we have set out. None of them can be accepted.

442 The prosecutor began his closing address to the jury by explaining the State's case as to motive. He said:

Mr Foreman and members of the jury, 'You rip drug dealers off in Kalgoorlie - like, Kalgoorlie's a pretty rough place - it's not going to end well. It's just the way it is.' These are [the appellant's] words that you heard him say in evidence when I was cross-examining him. You may think, ladies and gentlemen, that they aptly described what happened to Mr Davies and also, importantly, the state of mind of the four men who went to Mr Davies' house on Saturday, 15 February 2014, turned his house upside down and ultimately killed him.

These were people steeped in the illicit drug trade, in the illicit drug culture. Their relationships were not normal relationships. The circumstances were not ordinary circumstances to which ordinary people can relate. One can therefore, we respectfully suggest to you, put aside normal, ordinary expectations as to what was going to happen.

It is a world in which boundaries between friendship and illicit drug deals, illicit drug debts, were blurred, and the circumstances on 15 February 2014 involved at least three of the accused being affected by alcohol, being affected by methylamphetamine, significantly by methylamphetamine. It was in all respects a drug-fuelled criminal enterprise on which the four accused embarked.

In [the appellant's] case you will have gathered that he had been on a bender for nearly a week without sleep. You've heard Mr Moir's description of his appearance and his behaviour when he visited on the Saturday afternoon and then again the following day on the Sunday.

...

The State will be submitting to you, I will be submitting to you, by reference to the evidence that has been adduced in this trial, ladies and gentlemen, that Mr Roberts was the drug dealer. All of them at some point or other, it seems, may have helped others to obtain drugs. [The appellant] certainly seemed to be a bit of a middle man for Mr Roberts, but Mr Roberts was the drug dealer, and as [the appellant] says, in effect, you don't rip off drug dealers in a pretty rough place like Kalgoorlie without consequences.[637]

443 It was open on the evidence for the jury to accept these submissions.

444 There was ample evidence to demonstrate that the appellant was a heavy user of methylamphetamine and had been taking the drug for approximately one week without sleep. On his own evidence, the appellant was a very close friend of Mr Roberts who would do anything for him. The appellant accepted that he assisted Mr Roberts with his drug dealing by acting, in effect, as a middle man. The appellant was aware that Mr Davies owed money to each of Mr Roberts, Mr Kett and Mr Gomis. The appellant had been present when his co-accused discussed the money Mr Davies owed them.

445 It is apparent from the evidence the appellant gave in cross-examination and from what he said to Constable Anton that, in the appellant's mind, 'ripping off' drug dealers in Kalgoorlie justified a measure of violence.

446 There is no doubt that the appellant and at least some of his co-accused went together to Mr Davies' house. The appellant accepts that he was the first to enter the house and that he was present when Mr Davies was killed. Again, there can be no doubt that Mr Davies' death involved a high level of sustained violence inflicted by multiple weapons, fists and possibly kicks.

447 Even if the jury accepted that Mr Davies did not owe any money to the appellant, it was open to the jury to conclude that, in his drug-affected state, he went to Mr Davies' house with the intention of inflicting violence upon him to teach Mr Davies that ripping off drug dealers in Kalgoorlie was not going to end well and/or out of a distorted sense of loyalty to Mr Roberts. While the actions of the appellant and his co-accused were irrational and, to a sober mind, completely inexplicable and unjustified, that was not how the appellant was thinking at around the time Mr Davies was killed.

448 Even if there was no apparent motive on the appellant's part to go to Mr Davies' house and attack him, that does not mean that the State's case against the appellant fails. On any view of the evidence, the appellant willingly went to Mr Davies' house. He knew or must have known that violence was likely to be inflicted upon Mr Davies. Even if, as the appellant put it, he 'just went',[638] it was open to the jury to conclude that the appellant participated as a principal offender or as an aider in the attack on Mr Davies which led to his death.

Submission 2 - incapacity caused by the appellant's injured right hand

449 It may be accepted that the appellant injured his right hand by punching Mr Davies. It may also be the case that the appellant sustained the injury early in the altercation. However, on the appellant's own evidence, he took significant action to save Mr Davies; therefore it would be contradictory to claim his injury stopped him from taking an active role in the events as they unfolded. The appellant said that he used physical force to prevent Mr Kett attacking Mr Davies. Then later he dragged Mr Davies' body to the door through which he and the others had entered Mr Davies' house and that he, along with Mr Roberts and Mr Kett, placed Mr Davies' body in the bag. At 9 Hamilton Street, the appellant assisted Mr Roberts to put Mr Davies' body in the bathtub. He then brought the wheelie bin to the bathroom. The appellant admitted that he removed the toilet seat and that he helped to remove the bathroom door. While the appellant, when he gave evidence, often said that he used his left hand, it beggars belief that the appellant was able to perform these tasks without some use of his right hand. Moreover, it appears that the appellant did not himself seek medical treatment for his injury until he was in police custody.

450 As the appellant accepts, his DNA profile was found to match the one on the axe handle which the police recovered from the kitchen and living area of 45 Ware Street. The axe handle is, as we have described, large and heavy. It is implausible to accept that he used one hand to disarm Mr Kett of it.

451 In our opinion, it was open to the jury to conclude that the injury the appellant sustained to his right hand was not of such a nature as to prevent the appellant from attacking Mr Davies as alleged by the State.

452 The appellant's DNA and/or fingerprints were found on a number of items which were likely to have been used to inflict the fatal stab wounds and other injuries on Mr Davies. We have just mentioned the axe handle. The appellant's DNA profile was found to match the DNA profile on the middle section and round end of that implement. These locations are highly suggestive of a two-handed grip consistent with its use as a weapon.

453 The appellant was also found to be a highly likely contributor to the DNA profile found on the black-handled samurai sword. It is not disputed that this weapon could have been used to inflict at least some of the stab wounds sustained by Mr Davies. Mr Davies' DNA profile was said to match the profile found on the tip of the blade. A mixed DNA profile to which the appellant was found to be a highly likely contributor was located on the handle and on the hand guard of that weapon which suggests that the appellant used it as a weapon. It is relevant to observe that Mr Kett's DNA profile did not match the profiles found on either the axe handle or the samurai sword.

454 It is true that the appellant's fingerprint was found on the blade of one of the knives located in the backyard at 9 Hamilton Street. We observe that, according to Constable Hewitt, the fingerprint was consistent with the right index finger of the appellant. While the fingerprint is consistent with the appellant picking up the blade in a pincer movement, it affords very weak support for the notion that the appellant disarmed Mr Kett.

455 The appellant sought to innocently explain the presence of his fingerprints and likely presence of his DNA on various items. In our opinion it was well open to the jury to conclude that those explanations were contrived and implausible and therefore could justifiably be rejected.

456 This submission adopts an unduly narrow focus on the cause of Mr Davies' death. Dr Spark determined that Mr Davies died from multiple injuries and not merely the stab wound to the calf. As to this wound, there was no evidence that it breached the posterior tibial artery. On the assumption that it did breach that blood vessel, at its highest, Dr Spark's evidence was that the injury could have contributed to the blood loss which, in turn, could have sped up Mr Davies' death. Dr Spark did not testify to the effect that the stab wound to Mr Davies' right calf was the sole or the predominant cause of Mr Davies' death. When Dr Spark's evidence is considered as a whole, the stab wounds to Mr Davies' neck and the compressive injury that he suffered to that area of his body were greater contributors to Mr Davies' death than the stab wound to the right calf. With respect to the stab wounds to the neck, Dr Spark expressed the view that these alone could be fatal, with death occurring in a matter of minutes as a result of blood loss.

Submission 5 - the appellant's post-offence conduct

457 We have already addressed much of the appellant's post-offence conduct in our consideration of submission 2. In addition, there was evidence that:

(a) the appellant ordered Mr Gomis and Mr Kett to purchase cleaning products to be used in the bathroom at 9 Hamilton Street;

(b) the appellant threw some of his clothing into the fire which had been lit at 9 Hamilton Street; and

(c) the appellant placed paper and wood in the wheelie bin with the intention that Mr Davies' dismembered body would be burnt.

458 In our opinion, this conduct is not inconsistent with the appellant being culpable in Mr Davies' death.

459 The appellant's post-offence conduct cannot be isolated from what occurred earlier. In that regard, as we have already said, there is ample evidence that the appellant acted either as a principal or as an aider in Mr Davies' death. It was well open to the jury to find that the appellant's post-offence conduct was consistent with guilt and not innocence.

Submission 6 - evidence of Ms Kearsley and Mr Moir

460 We have already summarised the evidence of Ms Kearsley and Mr Moir. We will now refer to the salient parts of the evidence given by them at trial. While their evidence was significant, the State's case did not depend upon their evidence.

461 According to Ms Kearsley, she was present on an occasion shortly before the commission of the alleged offence when the appellant and Mr Roberts were together and when Mr Roberts referred to collecting money from Mr Davies. She also testified that she was present on 15 February 2014 when the appellant and his co-accused spoke about collecting money from Mr Davies. She also saw a big blue bag in the hallway of the house.

462 On the night of 15 February 2014, after the commission of the alleged offence, Ms Kearsley said that she saw the appellant covered in blood, with an angle grinder in his hands. She later resiled from this evidence, saying that she was mistaken and that the person she saw with the angle grinder was in fact Mr Roberts. She said that she cleaned the bathroom. She also saw the appellant throw his clothes in the fire. She later said that the appellant asked her to tape up the wheelie bin.

463 Ms Kearsley agreed that she was addicted to methylamphetamine and that she was under the influence of the drug throughout the period leading up to and after the alleged offence. She agreed that she was sleep deprived during this time.

464 Ms Kearsley also agreed that she had not been charged with any offence arising out of her actions in cleaning the bathroom.

465 It may be accepted that she held considerable antipathy towards the appellant.

466 Mr Moir testified that, sometime after 27 January 2014, Mr Davies' name came up in a conversation with the appellant and Mr Roberts. Mr Moir gave them Mr Davies' telephone number. Mr Moir said that he had heard a conversation between the appellant and Mr Roberts where they said words to the effect that they were 'after him'.

467 Mr Moir testified that he saw the appellant on 14 February 2014 and that he appeared to be under the influence of drugs.

468 On the evening of 15 February 2014, Mr Moir saw the appellant at 9 Hamilton Street. Mr Moir described the appellant as being 'off his head'. He noticed blood on the appellant's neck and on his clothes.

469 Mr Moir agreed that he was addicted to methylamphetamine and that he may not have remembered things exactly as they occurred.

470 By reason of her antipathy towards the appellant, the state of her drug intoxication and the inconsistencies in her testimony, we treat Ms Kearsley's evidence with considerable caution. However, her evidence to the effect that the appellant and the co-accused together discussed Mr Davies' drug debts was, in the end, essentially confirmed by the appellant.

471 In light of the change of position in cross-examination, Ms Kearsley's evidence that she saw the appellant with blood all over him and carrying an angle grinder cannot be accepted and could not reasonably be relied upon to establish that the appellant dismembered Mr Davies' body. Nevertheless, based on his own evidence, the appellant knew that Mr Roberts had dismembered Mr Davies' body and he stated that he assisted that process by bringing the wheelie bin to the bathroom and later placing paper and wood in it.

472 As to the presence of the blue bag in the hallway at 9 Hamilton Street, we are uncertain about Ms Kearsley's testimony in this regard and put it to one side.

473 With respect to Mr Moir, we treat his evidence with some caution because of his illicit drug use. However, the evidence he gave about the appellant and Mr Roberts being 'after' Mr Davies is, in essence, confirmed by the appellant himself. Mr Moir's evidence that the appellant was 'off his head' with amphetamine may well be accepted, given the appellant's behaviour on the weekend in question and his testimony about his drug consumption. As for Mr Moir's observations that he saw blood on the appellant's neck and clothes, as well as black soot on his face, they are consistent with the appellant's evidence that (a) he was in close contact with Mr Davies while at 45 Ware Street and while Mr Davies was bleeding, and (b) he disposed of his clothes in the fire at 9 Hamilton Street.

474 It may be accepted that, in some respects, Ms Kearsley and Mr Moir were unsatisfactory witnesses. That said, having regard to the evidence they gave and insofar as it was confirmed by the appellant's testimony, their evidence was not so unreliable as to render the guilty verdict unsatisfactory.

Submission 7 - the rejection of the appellant's version of events

475 In our opinion, the case against the appellant was very strong.

476 The appellant was a close friend of Mr Roberts. He was also addicted to methylamphetamine. Mr Roberts supplied him with that drug. He assisted Mr Roberts in his drug dealing enterprise by bringing him customers. It may readily be inferred, having regard to the nature of the appellant's relationship with Mr Roberts, that he felt a sense of loyalty or obligation to him.

477 Mr Davies was also a drug user and dealer. The evidence shows that he knew the appellant and his co-accused and that he had incurred drug debts to Mr Roberts, Mr Kett and Mr Gomis. We do not regard the evidence as being sufficient to establish that Mr Davies owed money directly to the appellant. Nor does the evidence establish the magnitude of any debt owed by Mr Davies to each of the appellant's co-accused. It may well be that the amounts that were owed were relatively modest.

478 The appellant and his co-accused were steeped in the culture of Kalgoorlie's illicit drug trade. Based on the appellant's evidence, in his mind Mr Davies had 'ripped off' at least Mr Roberts and such behaviour was liable to be met with a response involving the use of violence. As the appellant put it under cross-examination:

You rip drug dealers off in Kalgoorlie, like, Kalgoorlie's a pretty rough place. That's - it's - it's not going to end well.

479 Of course, to the rational mind, a modest debt such as may have been owed by Mr Davies to Mr Roberts or Mr Gomis or Mr Kett could not justify the use of any violence, let alone the extreme violence that was meted out to Mr Davies. But the appellant was not in a rational state of mind at the material time. He was a long-term user of methylamphetamine. He was using the drug in the period leading up to the commission of the offence. He had not slept for days. He was observed to be 'off his head' at the relevant time. This state, along with his strong loyalty to Mr Roberts, and his belief that persons who rip off drug dealers need to be punished, explains why the appellant went with the others to Mr Davies' house.

480 It is well open to infer that the appellant and his co-accused went to Mr Davies' house to confront him and recover the debts that he owed and, if necessary, to do so by threats or physical force. In other words, they went there at the very least to rob him.

481 It was also well open on the evidence to infer that the appellant and his co-accused went to the house with at least one weapon taken from 9 Hamilton Street. The discovery of the samurai sword with gaffer tape wrapped around its handle at 45 Ware Street and the discovery of an otherwise innocuous garden saw at 9 Hamilton Street wrapped in the same way enables this conclusion to be drawn.

482 In any event, the bringing of a weapon or weapons would be behaviour in keeping with the appellant's belief that people who rip off drug dealers do not end up well.

483 As for the large bag in which Mr Davies' body was placed, we are unable to conclude that the appellant and his co-accused brought it with them to 45 Ware Street.

484 According to the appellant, he 'just went' to Mr Davies' home with the co-accused and had nothing to gain by being there and did not intend or contemplate any violence towards Mr Davies and did not think that the others were contemplating violence. The jury by its verdict rejected this evidence. In our opinion, it was well open for them to do so.

485 We will not repeat what we have already written about the appellant's motive. In addition, his behaviour in the house contradicts his evidence that he 'just went' to 45 Ware Street. Even his own evidence of his conduct within the house indicates that he was no mere spectator.

486 In his sworn testimony, the appellant said that he was the first to enter Mr Davies' house. On this account, shortly after, he was involved in a fight with Mr Davies in which he punched him hard to the head and sustained a broken right hand. The appellant said that he did this in self-defence. Accepting this to be so, the appellant did not, as one might expect, then disengage himself from any further action. It is clear from his own evidence he remained inside the house and took an active role in the events as they unfolded.

487 It is beyond doubt that Mr Davies was savagely attacked over a sustained period in the lounge and kitchen area of his house. He sustained 37 sharp-force injuries and 42 other injuries. The medical evidence shows that he was injured virtually from head to toe. The sharp-force injuries could have been inflicted by implements found at both 45 Ware Street and 9 Hamilton Street. The other injuries, particularly the blunt force injuries to the head, were inflicted in all likelihood by other implements which were found at 45 Ware Street, including the axe handle and a steel rod. One only has to see and pick up the axe handle (which we have done) to understand the severity of the injuries it could cause.

488 The appellant's DNA and fingerprints are on a number of these implements. Forensic evidence linked him to the axe handle, the samurai sword, a knife and a broken piece of furniture. That evidence is consistent with his use of those items to inflict injury on Mr Davies.

489 In our opinion, it was well open to the jury to reject the appellant's evidence that it was Mr Kett who inflicted many of the injuries suffered by Mr Davies. There is no forensic evidence which links Mr Kett to any of the weapons found at either 45 Ware Street or 9 Hamilton Street. Mr Kett's DNA profile was matched to the DNA profile found on a cable tie and on a cigarette butt at the scene of 45 Ware Street. Those items show he was there, but they do not support the contention he used weapons on Mr Davies.

490 There are other reasons to reject the appellant's evidence. The appellant denied that Mr Davies was stabbed in the neck. According to the appellant, the only stab wound of significance was the wound to Mr Davies' right calf. The evidence of Dr Spark was that Mr Davies was stabbed in the neck and that those injuries severed Mr Davies' jugular and subclavian veins, causing massive blood loss. The evidence does not support the appellant's account of the only major stab wound being to Mr Davies' right calf. Dr Spark was unable to confirm that the posterior tibial artery was severed. The blood spatter expert, Sergeant Spivey, made no findings of blood spurt consistent with blood spurting two-thirds of the way up the wall. The appellant's testimony that the only significant wound suffered by Mr Davies was the wound to the right calf may well have been seen by the jury as a convenient attempt by the appellant to support his argument that the injuries sustained by Mr Davies were not consistent with an intention to kill or inflict serious injury. Of course, such a contention would have been unsustainable had the appellant accepted that Mr Davies had been stabbed in the neck.

491 It was also open to the jury to regard the appellant's evidence that he was attempting to save Mr Davies from attack by Mr Kett as false. The notion that the appellant wanted to help Mr Davies is belied by his failure to call for medical assistance and by his subsequent actions in dragging Mr Davies to the door in which the appellant first entered and then helping to put him in an improvised body bag. These actions were antithetical to the claim that he wished to help Mr Davies.

492 Moreover, on the appellant's evidence, on the drive back to 9 Hamilton Street, believing that Mr Davies might still be alive, the appellant contemplated leaving him on the road.

493 This takes us to the appellant's post-offence conduct at 9 Hamilton Street.

494 On his evidence, the appellant assisted Mr Roberts in putting Mr Davies' body in the bathtub. He then brought the wheelie bin to the bathroom. He was aware that Mr Roberts dismembered the body in the bathroom. The appellant admitted that he removed the toilet seat and that he helped to remove the bathroom door. He also testified that he placed wood and paper into the wheelie bin as fuel to burn Mr Davies' dismembered body. He disposed of most of his clothing in the fire that was set in the backyard at 9 Hamilton Street. The appellant asserts that all of this behaviour is capable of an innocent explanation, being panic. The appellant's post-offence conduct cannot be isolated from what occurred earlier. In that regard, as we have already said, there is ample evidence that the appellant was a party to Mr Davies' death. It was well open to the jury to find that the appellant's post-offence conduct was consistent with his guilt.

495 Finally, there are the admissions that the appellant made to Constable Anton on 17 February 2014. The effect of those admissions was that the appellant confessed:

(b) that what he did was a 'crime', that is, that he was criminally responsible for what he did; and

(c) that Mr Davies 'had it coming to him' because 'he ripped a lot of people off and owed a lot of people money'.

496 These admissions contradict the appellant's testimony to the effect that it was Mr Kett who did the acts which led to Mr Davies' death. They also undermine his claim that he merely punched Mr Davies in self-defence and his case that he had no motive for going to Mr Davies' house and attacking him.

497 Upon our review of the record, the evidence does not contain discrepancies and is not tainted or otherwise lacking in probative force such as to raise any reasonable doubt in our mind as to the guilt of the appellant. In arriving at this conclusion, we are mindful of the considerable advantage that the jury had of seeing and hearing witnesses such as Ms Kearsley, Mr Moir, Constable Anton, Mr Roberts and the appellant. The case against the appellant was circumstantial, but, having considered the evidence as a whole, we are satisfied that there is no inference reasonably open on the evidence consistent with innocence. We are satisfied beyond reasonable doubt of the guilt of the appellant either as a principal offender or as an aider, or, at the least, pursuant to s 8 of the Criminal Code. In our opinion, it was well open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty of the murder of Mr Davies. We are far from persuaded that the jury must have entertained a reasonable doubt.

499 Proposed ground 4 alleges various 'errors at law' committed by the trial judge. It is supported by eight particulars. The appellant has cited many cases in support of these particulars. It is unnecessary to refer to them because the passages cited are largely taken out of context, and/or are inapt.

500 Particulars 1, 3, 5 and 6 concern the evidence of Ms Kearsley and Mr Moir, which we have already summarised.

501 As best as can be understood, the appellant submits that their evidence was inadmissible or should have been excluded because:

1. it was irrelevant;
2. its probative value was outweighed by its prejudicial value;
3. it was fabricated, coached or concocted; and
4. each was a drug addict, and Ms Kearsley was a sex worker.

502 All these submissions may be dealt with briefly. They have no merit. Both Ms Kearsley and Mr Moir gave relevant testimony in connection with the events surrounding the alleged offence. For example, each testified that they heard conversations in which the appellant was present or involved concerning Mr Davies' indebtedness to Mr Roberts. Each gave evidence concerning the appellant's behaviour and appearance shortly after the commission of the alleged offence. It is significant that the appellant's very experienced trial counsel did not object to the evidence of Ms Kearsley or Mr Moir on the ground of relevance. Nor did defence counsel seek to invoke the trial judge's discretion to exclude relevant evidence because its probative value was outweighed by its prejudicial value. Had defence counsel made such an objection, it would have been doomed to fail because there is no rational basis upon which his Honour could have exercised his discretion to exclude their evidence. The testimony of Ms Kearsley and Mr Moir, if believed, was prejudicial to the appellant because of its probative force and not as a result of any unfairness to him by its admission.

503 The fact that Ms Kearsley and Mr Moir were drug addicts, and that Ms Kearsley was a sex worker, are not matters which would justify the exclusion of their evidence. No secret was made of the fact that both witnesses were users of methylamphetamine. The State led evidence to that effect, and defence counsel emphasised it when seeking to attack their credibility. Each witness was cross-examined to the effect that their drug use affected their recollection of events. Ms Kearsley said it had affected her recollection, while Mr Moir said that it had not. Ultimately, it was a matter for the jury to decide how and to what extent their illicit drug use affected the credibility of their evidence.

504 Allegations made by the appellant of concoction, fabrication and coaching were also matters for the jury.

505 Particular 1 contains an allegation which may be understood to allege that the appellant suffered a miscarriage of justice as a result of off-hand comments made by counsel for Mr Kett and Mr Roberts, during the course of his cross-examination. The relevant transcript pages are ts 2352, 2365 and 2419.

506 We have read the transcript pages cited by the appellant. In each instance, defence counsel asked questions in which comments were made about the witness' answers. The comments that were made by counsel may be fairly characterised as innocuous. In each case, the appellant's counsel objected and the trial judge upheld the objection and made brief remedial comments. There is no realistic possibility that counsel's actions gave rise to a miscarriage of justice.

507 Particular 2 is difficult to understand. The appellant complains that the trial went for seven weeks, and that a large portion of the evidence that was adduced was irrelevant and highly prejudicial to him. We will treat this particular as alleging that the appellant has suffered a miscarriage of justice by reason of being tried jointly with Mr Roberts, Mr Kett and Mr Gomis.

508 Clause 7(4) of sch 1 of the Criminal Procedure Act 2004 (WA) (CPA) permits the charging on indictment of two or more persons with committing the one offence. Clause 9(2) of sch 1 of the CPA requires that:

If one charge charges 2 or more accused, they must be tried together unless a court orders otherwise under this Act.

509 Section 133 of the CPA relevantly provides:

(1) The powers in this section may be exercised by a court on its own initiative or on an application by an accused and may be exercised before or during a trial.

...

(3) If a court is satisfied that an accused is likely to be prejudiced in the trial of a prosecution notice or indictment because it contains 2 or more charges, the court may order -

(a) that the accused be tried separately on one or more of the charges; and

(b) the prosecutor to tell the court the order in which the charges will be tried.

(4) If a court is satisfied that an accused is likely to be prejudiced in the trial of a prosecution notice or indictment because it also charges one or more other accused, the court may order -

(a) that one or more of the accused be tried separately from the other or others; and

(b) the prosecutor to tell the court the order in which the accused will be tried.

(5) In deciding whether to make an order under subsection (3) or (4) in respect of an indictment to be tried by a jury, it is open to a superior court -

(a) to decide that any likelihood of the accused being prejudiced can be guarded against by a direction to the jury; and

(b) to so decide irrespective of the nature of the offence or offences charged; and

(c) to so decide even if -

(i) the evidence on one of the charges is inadmissible on another; or

(ii) the evidence against one of the accused is not admissible against another,

510 The proper construction of subsections 133(4) and 133(5) of the CPA was examined by Buss JA in Russell v The State of Western Australia.[639] It is unnecessary to repeat what his Honour wrote on that occasion.

511 It may be that the appellant considers that he was prejudiced in his trial because evidence implicating him was adduced, despite that evidence being admissible only against his co-accused but not against him. Of most significance were the out-of-court statements made by Mr Kett and Mr Gomis which directly implicated the appellant as a principal offender.

512 Such potential for prejudice is common in joint trials. It does not give rise to an automatic right to separate trials or to an inevitable finding that there has been a miscarriage of justice. In most cases, the likelihood of an accused being prejudiced by a joint trial can be guarded against by an appropriate direction to the jury. This is such a case.

513 In the present case, it is plain that his Honour was alive to the likelihood of prejudice to the appellant as a result of the out-of-court statements of Mr Kett and Mr Gomis. When the evidence of out-of-court statements was led, his Honour informed the jury in the trial that the evidence was only admissible against the accused who made the statement. His Honour directed the jury to this effect in his summing up.[640] Among the written jury aids his Honour provided was a document which set out clearly what evidence was admissible in respect of each accused. This document specified clearly that the interviews of Mr Kett and Mr Gomis were evidence for and against them, and that whatever each said must be disregarded when considering the State's case against the other accused.[641] These measures were sufficient in this case to overcome the prejudice caused by the joinder of the accused.

514 In our opinion, the appellant suffered no miscarriage of justice as a result of the joint trial.

515 Particulars 7 and 8 make vague and completely unsubstantiated allegations of impropriety to the effect that prosecution witnesses said 'whatever was required of them by the State', and that 'the State's agents worked with these witnesses over time and the State's case in regard to these witnesses, was reworked many times to be more favourable against the appellant'. These particulars are wholly without merit.

The appellant's application filed 12 October 2016

517 At [12] of these reasons we have set out the orders the appellant sought in his application in an appeal dated 12 October 2016. At [13] we have set out the orders that were made on 17 October 2016. Given what we have already written, it is only necessary for us to explain why the application in respect of proposed order 1 was dismissed. Once a party files a notice of self-representation, an order removing the appellant's previous legal advisors is not required.

518 There is no merit in the appeal. It must be dismissed. We would make the following orders:

1. Leave to appeal on proposed grounds 3 and 4 is refused.
2. The appeal is dismissed.

[3] ts 3874, The State of Western Australia v Gandy [2015] WASCSR 211.

[7] See s 39(1) Criminal Appeals Act 2004 (WA).

[75] The State of Western Australia v Gandy [2015] WASC 382.

[80] Mouritz v The State of Western Australia [2006] WASCA 165.

[81] Michaels v The State of Western Australia [2009] WASCA 174.

[82] Mouritz [28] (Roberts-Smith JA) and Michaels [10] (McLure JA); see also L v The State of Western Australia [2016] WASCA 101; (2016) 49 WAR 545 [54].

[83] Examples of where a direction of this kind was required include Fermanis v The State of Western Australia [2007] WASCA 84; (2007) 33 WAR 434 and, more recently, Ardrey v The State of Western Australia [2016] WASCA 154.

[88] It was not alleged, nor was there any evidence, that Mr Gomis had done any act or acts that caused Mr Davies' death: ts 3633, 3715.

[91] Appeal ts 3, see L v The State of Western Australia [2016] WASCA 101; (2016) 49 WAR 545 (Martin CJ, Mazza JA & Mitchell J) and Campbell v The State of Western Australia [2016] WASCA 156; (2016) 50 WAR 331 (Buss JA), but cf (McLure P).

[98] R v Clarke and Johnstone [1986] VicRp 64; [1986] VR 643, 661.

[100] R v Leivers and Ballinger [1998] 1 Qd R 649.

[101] R v Walsh [2002] VSCA 98; (2002) 131 A Crim R 299 (Phillips & Buchanan JJA, with whom Ormiston JA agreed) [57].

[102] Ardrey v The State of Western Australia [2016] WASCA 154.

[103] R v Thatcher (1987) 39 DLR (4th) 275.

[105] Section 30(3)(a) Criminal Appeals Act 2004 (WA).

[106] Wells v The State of Western Australia [2017] WASCA 27 [13].

[107] Mansell v The State of Western Australia [No 6] [2013] WASCA 120 [20] - [22].

[350] Exhibit 113, page 1; exhibit 114.

[362] Exhibit 69. This item was found on the kitchen bench near the kitchen sink in the kitchen and living area at 45 Ware Street.

[363] Exhibit 99. This item was found in a garden bed outside the back door at 9 Hamilton Street.

[364] Exhibit 94. This item was retrieved from the wheelie bin at 9 Hamilton Street.

[387] ts 2009 - 2010; exhibit 135, page 5.

[392] ts 2030; exhibit 135, pages 7, 8.

[395] ts 2039 - 2040; exhibit 135, page 23.

[414] ts 2147 - 2149, 2151 - 2156, 2160 - 2163.

[629] Appellant's submissions filed 10 June 2016, appeal ground 3 [2].

[638] Appellant's written submissions page 5, par 31.

[639] Russell v The State of Western Australia [2011] WASCA 246; (2011) 214 A Crim R 326 [335] - [349].