Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Criminal law - Jury separation and sequestration - Judge exercised discretion to allow jury to separate over weekend after commencement of deliberations - Accused alleged prejudicial publicity over the weekend and errors in the exercise of discretion by the trial judge - No miscarriage of justice - Criminal Procedure Act 2004 (WA) s 111

Criminal law - Jury - Directions - Murder - No mental element under s 279(1)(c) of the Criminal Code (WA) - No requirement to direct the jury as to objective intention under s 279(1)(c) of the Criminal Code

Acts Amendment (Criminal Penalties and Procedure) Act 1982 (WA), s 10

Criminal Appeals Act 2004 (WA), s 30

Criminal Procedure and Appeals (Consequential and Other Provisions) Act 2004 (WA), s 24

Criminal Procedure Act 2004 (WA), s 111

Juries Act 1927 (SA), s 55

Juries Act 2000 (Vic), s 50

Jury Act 1977 (NSW), s 22(a)(i), s 54

Brownlee v The Queen [2001] HCA 36; (2001) 207 CLR 278

Gargan v Director of Public Prosecutions (NSW) [2004] NSWSC 10

House v The King [1936] HCA 40; (1936) 55 CLR 499

Hughes v The Queen [1951] HCA 34; (1951) 84 CLR 170

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

R v Appleby (1996) 88 A Crim R 456

R v Bridger [2003] SASC 180

R v Brownlee (1997) 41 NSWLR 139

R v Evans (1995) 79 A Crim R 66

R v Gould & Barnes [1960] Qd R 283

R v Radju [2001] NSWCCA 103

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

Wongawol v The State of Western Australia [2011] WASCA 222

1 Following a trial by jury in the Supreme Court of Western Australia, Rohan Tait Johnston was convicted of the murder of Christine Patricia Van Dongen. Mr Johnston appeals against that conviction. There are two grounds of appeal. The first ground asserts that the trial judge misdirected the jury with respect to s 279(1)(c) of the Criminal Code (WA). The second ground alleges that there was a miscarriage of justice because the trial judge allowed the jury to separate over the course of a weekend after having retired to consider their verdict. For the reasons which follow, both grounds of appeal should be rejected and Mr Johnston's appeal dismissed.

2 Mr Johnston was originally charged on an indictment which alleged that he and Mr Samir Hishmeh had each committed five offences. Count 1 alleged the offence of burglary in various circumstances of aggravation. Count 2 alleged that they had deprived Ms Van Dongen of her liberty. Count 3 alleged that they had deprived Mr Bradley Deliu of his liberty. Count 4 alleged that they had threatened to unlawfully injure Mr Deliu. Each of counts 1 - 4 was said to have been committed at Mount Nasura, a suburb of Perth, on 3 January 2010.

3 Count 5 on the indictment alleged that Mr Johnston and Mr Hishmeh murdered Ms Van Dongen at Perth on 5 January 2010. The differences between the date and location of counts 1 - 4 on the one hand, and count 5 on the other, is explained by the fact that Ms Van Dongen died in hospital two days after receiving injuries in the course of the events which gave rise to counts 1 - 4.

4 On 10 February 2011, Mr Johnston entered pleas of guilty to counts 1, 2 and 3 on the indictment. Following the entry of those pleas, the indictment was amended, so that counts 1 - 3 alleged offences by Mr Hishmeh only. Counts 4 and 5 were not amended.

5 The trial commenced on 11 April 2011. Mr Hishmeh entered pleas of not guilty in respect of all five counts. Mr Johnston entered pleas of not guilty in respect of the two counts that remained against him, being the count of threatening to unlawfully injure Mr Deliu, and the count of murdering Ms Van Dongen.

6 This was explained to the jury by counsel for Mr Johnston in the course of her opening remarks. On his behalf, she made formal admissions to the effect that Mr Johnston was present at a house in Mount Nasura when Ms Van Dongen sustained the injuries that caused her death two days later. In addition to those formal admissions, counsel told the jury that:

Rohan Johnston admits that he made a terrible decision to go to the house of a person known to sell drugs. He was there to find money and drugs, if they were there, to get the money and drugs and get out of there as quickly as possible. He admits that he went to the house. And we know that the result of him having been there was that an awful death occurred (ts 57).

7 Counsel advised the jury that the reason counts 1 to 3 were not put to Mr Johnston when he and Mr Hishmeh were arraigned was because he had already pleaded guilty to the first three counts, being the charge of burglary and the two charges of deprivation of liberty. Counsel put to the jury that the real issue which they were going to have to address in relation to Mr Johnston was not so much what happened, but what role, if any, Mr Johnston played in bringing about the death of the deceased. Counsel put to the jury:

What the defence would say to you now, and we say the evidence will bear this out, is that Mr Johnston did not kill Ms Van Dongen, that Mr Johnston did not ever intend that she should be killed, that Mr Johnston never formed a plan with Mr Hishmeh or anyone that contemplated her death, and that nothing that was done by Mr Johnston was done or he knew would be done that would be likely to endanger life; in other words, he did no act and he knew of no-one's intention or plan to do any other act that would be likely to endanger life (ts 58).

8 The prosecution case included the evidence of Mr Deliu, who testified that he had known Ms Van Dongen for about five or six years. He had purchased amphetamine from her from time to time. Ms Van Dongen was a known drug dealer. On 3 January 2010, Mr Deliu went to Ms Van Dongen's house in Mount Nasura. He found Ms Van Dongen with another man, a Mr Shafto, who left about 10 minutes later.

9 Ms Van Dongen offered Mr Deliu a pipe containing amphetamine which he smoked. After he finished smoking, he saw two people enter the house walking quickly. One was wearing a white hat and the other had tanned skin. Mr Hishmeh, who gave evidence, admitted that he was the person described by Mr Deliu as having tanned skin. Given Mr Johnston's admissions, it followed that he was the one in the white hat. According to Mr Deliu, Ms Van Dongen said 'who the fuck are youse?' after which the man in the white hat 'king hit' Ms Van Dongen in the face. Mr Deliu rose to his feet, but was told by the person who was not wearing the white hat to get on the ground and to keep his head down. Mr Deliu obeyed that instruction, and got on the ground to the left of the table at which he had been sitting with Ms Van Dongen, with his head under the table. He heard Ms Van Dongen being hit at least 22 times. The only part of the assault which Mr Deliu saw involved the use of a fist. The man with the hat did most of the talking, although he heard the man with the tanned skin say 'put her in the proper hold' and 'hit her again' (ts 248). The prosecution case was to the effect that Mr Johnston had applied a choke hold to Ms Van Dongen after she had been knocked to the ground with the encouragement of Mr Hishmeh.

10 Mr Deliu testified that he heard the man with the white hat say 'where's the fucking money, bitch?' to which Ms Van Dongen replied, in a gargled voice, 'I'll show you where it is'. The person with the white hat said 'that's not good enough' and hit her 'again and again' (ts 250 - 251). Mr Deliu also testified that he heard Mr Johnston tell the other man to check the fireplace. He also heard Mr Johnston say, after referring to a baseball bat 'fuck it, grab the hammer' (ts 249). Mr Deliu also heard the sound of breaking glass, and noises which led him to believe that the bedroom of the house was being ransacked (ts 253). He then heard Mr Johnston say 'check the freezer' (ts 253). He then heard the sound of rummaging coming from the kitchen.

11 As the two men left, Mr Deliu heard Mr Johnston say 'you should of [sic] opened your mouth, bitch' (ts 257).

12 Police officers gave evidence to the effect that when they arrived at the premises, Mr Deliu was found screaming, and Ms Van Dongen was found on the ground moaning, having been beaten around the face and head. Her hands were tied in front of her by cable ties. A hammer was found on the floor just inside the door. Six fingerprints matching Mr Johnston's fingerprints were found on the wall in the dining room adjacent to where Ms Van Dongen was found. His fingerprints were also found in the main bedroom on a chest of drawers, on the top of the railing in the dining room, and at other points in the house.

13 The evidence of forensic experts established that Ms Van Dongen's death was caused by brain damage suffered as a result of the blows which she received to her head. However, she received numerous other injuries, including a cut to her left cheek apparently caused by a sharp object, which was consistent with evidence which suggested that her head had been forced through the glass panels of a wall cabinet at a time when her hands were bound by cable ties. She also sustained a bony injury to the left upper arm which protruded through the surface of her skin and which was the site of a very large wound. Evidence at trial indicated that this wound was most likely caused by having been struck with a hammer (ts 85). Evidence also established damage to the thyroid cartilage in the throat, consistent with force or compression having been applied to the neck or throat (ts 78).

14 The prosecution also led evidence from Mr Seth Pywell. Mr Pywell had known Mr Johnston and Mr Hishmeh for a number of years. He and Mr Hishmeh were partners in a business which carried out sand blasting and spray painting work in Port Hedland (ts 455). Mr Johnston was employed in the business as a trade assistant.

15 Mr Pywell testified that on or about 4 January 2010 (the day following the attack on Ms Van Dongen), Mr Hishmeh telephoned him and advised that he had 'done a job with' Mr Johnston and it had 'gone bad' (ts 458). Mr Pywell asked Mr Hishmeh if anybody had been killed, to which he replied 'I hope not' (ts 458). Mr Hishmeh also advised Mr Pywell that it had been reported on the news. Although Mr Pywell had seen news reports dealing with the attack on Ms Van Dongen, he did not connect those reports with what he had been told by Mr Hishmeh until Mr Johnston returned to Port Hedland and told Mr Pywell that those news reports related to what had been done by Mr Johnston and Mr Hishmeh (ts 460).

16 Further, Mr Pywell testified that Mr Johnston told him that they had used a hammer and that he had 'taken the woman down' (ts 462); and that Mr Johnston told Mr Pywell that they had hoped to obtain large amounts of money or drugs.

17 According to Mr Pywell, Mr Johnston told him that he had tied the woman's hands with cable ties and 'tried to choke her out' from behind (ts 464). Mr Johnston also told Mr Pywell that they searched the house, but did not find anything of value, after which he had struck the woman with a hammer in the leg several times, and in the upper arm three times (ts 468 - 469). Mr Johnston told Mr Pywell that he was surprised that the woman had died as a result of her injuries.

18 Mr Hishmeh gave evidence to the effect that Mr Johnston had asked him to accompany him to collect some money that he was owed. He testified that he travelled to Ms Van Dongen's house in a car with Mr Johnston and Mr Shafto. Mr Hishmeh testified that he and Mr Johnston waited outside while Mr Shafto entered the house. They waited until he left the house, and then entered the house, after which Mr Johnston brought the woman who was in the house to the ground, and struck her to the head with his fist several times. Mr Hishmeh said that Mr Johnston then tried to choke her, at which time Mr Hishmeh testified that he said to Mr Johnston 'it's not the proper hold' (ts 1041).

19 According to Mr Hishmeh, Mr Johnston then applied cable ties to the hands of Ms Van Dongen, after which he asked her where the money was. At this point, he said Mr Johnston had a hammer in his hands. However, Mr Hishmeh did not see Mr Johnston strike Ms Van Dongen with the hammer.

20 According to Mr Hishmeh, it was Mr Johnston who conducted the search of the house. Additionally, according to Mr Hishmeh, he did not, himself, strike any blows. He claimed to be surprised when Mr Johnston attacked Ms Van Dongen.

21 Counsel for each accused addressed the jury on the basis that they should not be satisfied beyond reasonable doubt that it was their client who had caused the fatal injuries sustained by Ms Van Dongen.

22 The trial judge commenced his address to the jury during the afternoon of 4 May 2011. His directions to the jury occupied the remainder of that day, and most of the following day. The jury retired at 3.50 pm on Thursday, 5 May 2011, roughly four weeks after the commencement of the trial. The jury were excused from their deliberations at 4.39 pm and the members of the jury were allowed to separate and return to their homes. I will refer to the precise direction given by the trial judge prior to the separation of the jury in the context of ground 2.

23 The jury resumed their deliberations the following day. In the latter part of that day, the jury sent a message to the judge to the effect that they were in a position to deliver their verdicts on counts 1 - 3 (which only concerned Mr Hishmeh), but were not in a position to deliver their verdicts on counts 4 and 5 (ts 1808). The jury were excused from their deliberations at 4.49 pm that afternoon, and were directed to return to resume their deliberations on the following Monday morning at 10.00 am. I will refer to the discussions between counsel and the trial judge which preceded the separation of the jury that evening, and to the directions given by the trial judge at that time in the context of ground 2.

24 At about 2.25 pm the following Monday, the jury advised the trial judge that they had agreed on verdicts in respect of all counts other than the count of murder brought against Mr Hishmeh, on which they were hopelessly deadlocked. Accordingly, the trial judge discharged the jury in relation to count 5 against Mr Hishmeh, and took verdicts on all other counts. Verdicts of guilty were returned against Mr Hishmeh in respect of counts 1, 2 and 3. Verdicts of not guilty were returned against both accused in respect of count 4. The jury returned a verdict of guilty in respect of the charge of murder brought against Mr Johnston (count 5).

The learned trial judge erred both in law and fact, and there was a miscarriage of justice, when he failed to adequately direct the jury that the test for section 279(1)(c) in the Criminal Code was objective.

26 The material terms of s 279 of the Criminal Code are as follows:

(1) If a person unlawfully kills another person and -

(a) the person intends to cause the death of the person killed or another person; or

(b) the person intends to cause a bodily injury of such a nature as to endanger, or be likely to endanger, the life of the person killed or another person; or

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

the person is guilty of murder.

(2) For the purposes of subsection (1)(a) and (b), it is immaterial that the person did not intend to hurt the person killed.

(3) For the purposes of subsection (1)(c), it is immaterial that the person did not intend to hurt any person.

27 The prosecution relied upon each of 279(1)(b) and (c). In the course of directing the jury with respect to the elements of the offence of murder pursuant to s 279(1)(b), the trial judge correctly addressed the jury that the requisite element of intent to cause bodily injury of such a nature as to endanger life referred to the actual or subjective intention of the relevant accused (ts 1680). The argument put in support of ground 1 is to the effect that it was incumbent upon the trial judge to specifically direct the jury with respect to the distinction between that aspect of the elements of the offence of murder pursuant to s 279(1)(b) and the elements of the offence of murder pursuant to s 279(1)(c).

28 The trial judge directed the jury that if they were not satisfied that the accused intended to cause bodily injury of such a nature as to endanger the life of Ms Van Dongen, the accused should nevertheless be convicted of murder if the jury was satisfied to the requisite standard that the accused had unlawfully killed Ms Van Dongen by means of an act done in the prosecution of an unlawful purpose, which act was of such a nature as to be likely to endanger human life. In that context, he correctly directed the jury that they did not need to be satisfied as to any element of intent by the person who caused the death (ts 1681) (see s 279(3)).

29 It is clear from the argument advanced in support of ground 1 that the word 'objective' is used in that ground in the sense of referring to things external to the actual processes of thought of an individual. In that sense, 'objective' is the antonym of 'subjective', which refers to the actual processes of thought or the actual intention of a particular person. Where an offence contains a mental element, such as intent (for example, s 279(1)(b)), or knowledge, it will invariably be necessary and appropriate for a trial judge to direct the jury as to the subjective nature of the mental element which has to be established. The trial judge gave such a direction to the jury in this case, in connection with s 279(1)(b). In some cases, it will be necessary and appropriate for a trial judge to give a direction which distinguishes between a mental element which is to be assessed subjectively, and other aspects of the case that must be assessed objectively. An obvious example of such a case is where self-defence arises under s 248 of the Criminal Code, under which the belief that the act is necessary to defend from harm is to be assessed subjectively, whereas the reasonableness of the response (in the circumstances known to the accused subjectively), and of the grounds for the belief, are to be assessed objectively.

30 However, where the relevant offence contains no mental element, it is quite unnecessary and very probably confusing for the jury to be directed with respect to the distinction between subjective and objective assessment of states of mind. The danger of confusion would be very high in a case such as this, where one of the paths to conviction relied upon by the prosecution required proof of a subjective intent, whereas an alternative path to conviction relied upon by the prosecution did not require any mental element to be established. In the latter context, a direction to the effect that the jury were required to assess the elements of the offence on an objective basis rather than a subjective basis would be at best meaningless (as under s 279(1)(c) the jury are not required to assess the state of mind of the accused at all), and at worst, misleading and confusing by encouraging the jury to adopt the erroneous view that the offence of murder pursuant to s 279(1)(c) included some mental element.

31 This ground of appeal is misconceived and must be rejected.

The learned trial judge's discretion miscarried and there was a miscarriage of justice when, over objection, he allowed the jury in the course of their deliberations to separate over the weekend of 7 and 8 May 2011 ('the weekend');

Particulars

2.1 His Honour refused to sequester the jury over the weekend because the court was unable to arrange accommodation;

2.2 There was a risk the jury would discuss the matter over the weekend with persons not part of their jury;

2.3 His Honour failed to adequately direct the jury that they should keep their own counsel about the trial over the course of the weekend;

2.4 There was a danger that publicity over the weekend may have adversely influenced the jury.

33 It is necessary to relate in more detail the directions given by the trial judge to the jury, and the interchanges between counsel and the trial judge that are relevant to this ground.

34 Immediately after the jury were empanelled, the trial judge gave them a number of directions with respect to the course that would be followed during the trial. The following direction was given in that context:

Now, although I have encouraged you to discuss this case among yourselves, as I have explained, you should not, and I repeat 'not', in any circumstances discuss the case with other persons outside your own group of 16. When you go home in the evenings, undoubtedly friends or family members will be interested in your day's experience and will want to say something about it, and perhaps may even wish to discuss what is happening about the evidence. In those circumstances, while you can give a neutral account of what has happened, under no circumstances should you discuss the merits of the case with outsiders, even members of your own family. The burden of being a juror is an important one, but you carry the responsibility alone. It is important that you should have no discussions with anybody else about the merits of the case, even with people from whom you would normally have no secrets (ts 17).

35 On the subject of media coverage, the judge gave the following direction to the jury as part of the same short address following empanelment:

One last matter which I need to mention arises from what I have already said about your obligation to decide this case solely upon the evidence which you hear in the courtroom. Should it come to your attention that there is any publicity or media coverage about this trial, or any aspect of it, you should disregard that. Certainly you should not use any Internet, or search machines, or other electronic devices to probe into the past, or attempt to ascertain press cover, if there has been any, about the events which are the subject of the trial. Great care and attention is given to ensuring that only admissible evidence, that is evidence which is acknowledged to be that which a jury can properly take into account, may be given in a courtroom. And it would be unfair to the prosecution, to the accused, and to the community, if you are to pay regard to matters which come from outside and which cannot be tested (ts 17 - 18).

36 As I have noted, the jury commenced their deliberations at 3.50 pm on Thursday, 5 May 2011. Following the retirement of the jury, the trial judge received submissions from counsel with respect to errors or deficiencies in his address to the jury. During the course of that process, he indicated to counsel that he proposed to discharge the jury from their deliberations and allow them to separate, on the basis that they would return and resume their deliberations at 10.00 am the next day. Neither defence counsel indicated any objection to that course, but each encouraged the trial judge to renew the warnings he had given to the jury immediately after their empanelment. Before the jury were excused, the trial judge addressed them in these terms:

I've asked you to come back at this stage because we have now reached a critical point in the trial. All the evidence has been completed and all the addresses have also been completed and the final 12 of you have been selected and commenced deliberations. In the circumstances, it is appropriate that I should remind you again, and with emphasis, how important it is not to discuss the merits of this case with anyone outside your group of 12. That has always been the case but it has even greater importance from now on, and that also entails an obligation to ensure that you - that none of the members of the jury seek out information from the press or the media or the Internet of any kind like that. There is no reason why you should not read the papers or watch the news but you should not accept or act on any information coming from the media and you should certainly not attempt to obtain any such information (ts 1752).

37 Following the departure of the jury, counsel for Mr Hishmeh inquired as to whether, if verdicts were not returned the following day (Friday), the trial judge proposed to continue the trial on Saturday, or alternatively, Monday. The trial judge advised that he would not contemplate sitting over the weekend because that would put too much pressure on the jury. He advised counsel that if verdicts were not returned the following day, he would propose to adjourn the case until Monday, subject to clearing other commitments which he had that day. There was no discussion on the subject of whether the jury would be sequestered over the weekend.

38 At 4.32 pm on the following day, the jury having advised the trial judge that they had not completed their deliberations on all counts, the trial judge indicated to counsel that it was his intention to discharge the jury from their deliberations and require them to return to resume those deliberations on Monday morning. Both counsel for Mr Johnston and for Mr Hishmeh encouraged the trial judge to allow the jury to continue their deliberations later into the day. Both counsel expressed concern at the prospect of the jury being allowed to separate for the weekend. In that context, the following interchange took place:

HEENAN J: Well ... there's simply no facility for the court to provide accommodation for jurors overnight.

LOVITT, MR: So jurors are never locked up overnight?

HEENAN J: No, not now.

LOVITT, MR: And never have been?

HEENAN J: Yes, they were. They used to be. They used to be in all trials, then it was restricted to murder trials and then in the last year or so that has been amended further (ts 1817).

39 I digress to observe that if the statements attributed to the trial judge are taken as a statement of the general position, they are not correct. Trial judges retain the power to require the sequestration of jurors and the court has the financial resources to meet the cost of providing accommodation to jurors overnight. Sometimes there are practical difficulties in obtaining appropriate accommodation, not only in regional centres, where accommodation is limited, but also in Perth, where hotel accommodation in the central business district has been in great demand in recent years. The practical difficulty of securing overnight accommodation for jurors was one of the factors drawn to the attention of government when the court proposed that the Criminal Procedure Act 2004 (WA) (the Act) should be changed to confer upon a trial judge the discretion to allow jurors to separate after they had commenced their deliberations. However, budgetary provision continues to be made to enable the costs of accommodating jurors overnight to be met, and if sufficient notice of the need for accommodation is given, suitable accommodation can usually be found. There is no express indication from the transcript as to whether the trial judge had caused inquiries to be made as to the availability of accommodation for the jury. Given the fact that sequestration had not previously been mentioned, and the trial judge's assertion that sequestration never occurred, it seems unlikely that the trial judge was referring to any specific difficulty accommodating the jury that evening.

40 Following the interchange with counsel, the trial judge brought the jury back in and inquired as to progress. The foreperson advised that while agreement had been reached on a number of counts, deliberations continued on other counts, which might or might not result in unanimous agreement with respect to those counts. In light of that information, the trial judge advised the jury that they would be excused from further deliberations until Monday morning at 10.00 am. Before they departed, he gave the following direction:

Now, seeing that this stage of the trial has been reached, you'll appreciate just how important it is, even more important than before, that you should not have any discussion with any person outside your group of 12 about the merits of this case or the natures of the disagreements that may exist about any particular issue on remaining matters. Or, for that matter, to disclose the verdicts on which you are agreed upon, on counts 1 to 4. And it is absolutely vital that you should avoid contact with media outlets, Internet or social network sites that have anything to do with this case and ensure that you bring, as you have done throughout these proceedings, your own judgment upon the evidence received in this courtroom exclusively, to bear on the case. That is of even greater importance now that we are at this stage (ts 1819).

41 In support of particular 2.4, an application was made to rely upon additional evidence, in the form of two articles published in The Weekend West newspaper on Saturday, 7 May 2011. That newspaper is the only daily newspaper published in Perth on Saturdays, and enjoys a large readership. The first article was published on the front page of the paper under the headline 'Vicious assaults on rise' (Fleming K, 'Vicious assaults on the rise', The Weekend West (7 May 2011) 1). It reported comments attributed to the Commissioner of Police in relation to the increase in serious assaults over the preceding decade. According to the article, the police commissioner 'blamed a tide of determined drunkenness for the increase in the serious offences, which include one-punch assaults, glassings and attacks with weapons'. The balance of the article was directed to commentary upon the problem of drunkenness in suburbs of Perth generally known as entertainment areas.

42 The second article was published on pages 51 and 52 of the same newspaper (Fleming K, 'Suddenly Savage', The Weekend West (7 May 2011) 51 - 52). It commenced with references to glassing, assaults by gate crashers at parties, assaults by passersby, and in a fast-food restaurant. Reference was also made to a young woman being stabbed by a stranger as she walked home. The article thereafter follows the theme of the article on page 1, being directed mainly to assaults due to drunkenness in entertainment areas of Perth.

43 The State does not contend that it is prejudiced by the tender of the additional evidence. However, it objects to the tender on the ground of irrelevance. I will address that issue in the context of my consideration of ground 2 as a whole, and specifically in the context of my consideration of particular 2.4.

44 As Gleeson CJ and McHugh J observed in Brownlee v The Queen [2001] HCA 36; (2001) 207 CLR 278:

One of the most significant aspects of the history of trial by jury before, and up to, the time of Federation is that it shows that the incidents of the procedure never have been immutable; they are constantly changing [12].

45 If one goes back in time to the 19th century, many Australian jurisdictions applied the common law rule which required jurors in felony trials (as compared to misdemeanour trials) to be sequestered from the time of empanelment until delivery of verdict.

46 Even after the inflexibility of that rule was relaxed at the end of the 19th century, in the first part of the 20th century, jurors were sequestered for the entire trial in capital cases. Section 25 of the Jury Act 1898 (WA) provided that jurors for the trial of a person charged for an indictable offence not punishable with death could separate during the intervals of the trial, except when otherwise ordered by the judge. Similarly, upon its enactment in 1913, s 639 of the Criminal Code provided that:

Except as hereinafter stated, after the jury have been sworn and the charge has been stated to them by the proper officer, they must not separate until they have given their verdict or are discharged by the Court.

...

[O]n the trial of a person charged with any indictable offence other than a crime punishable with death, the Court may, in its discretion, permit the jury to separate before considering their verdict for such period during any adjournment of the trial as the Court may think fit.

47 Section 639 was subsequently amended to also prohibit separation when the accused was charged with 'the indictable offence of murder' (Criminal Code Amendment Act 1961 (WA), s 4). It is to be remembered that trial times were generally much shorter in those days, with the result that the privations imposed upon jurors by reason of their sequestration were reduced. However, in the case of trials going beyond one week, it was not unusual for the jurors to be sequestered over the weekend. Sometimes juries sequestered over a weekend would be provided with an outing by the sheriff's officers such as a river trip or picnic involving the playing of games. Such excursions would always overseen by sheriff's officers, in order to ensure that jurors did not come into contact with others (see, for example, 'A picnic for the jury', Barrier Mining (26 April 1909) 4; 'Jurymen have picnic', The Mail (15 December 1928) 6; 'Trips for jury', The Courier Mail (28 February 1949) 3).

48 Eventually the practice evolved of allowing jurors to separate during the course of the trial but only up to the point at which they retired to commence their deliberations. The court's discretion under s 639 to permit the jury to separate prior to considering their verdict was extended to any indictable offence by amendments in 1982 (Acts Amendment (Criminal Penalties and Procedure) Act 1982 (WA), s 10).

49 However, after the commencement of deliberations, jurors would not be allowed to separate and would, if necessary, be sequestered overnight, usually in hotel accommodation where sheriff's officers were engaged to ensure that jurors did not come into contact with others. Section 639 of the Criminal Code was deleted in 2004 (Criminal Procedure and Appeals (Consequential and Other Provisions) Act 2004 (WA), s 24), but analogous provisions were included in s 111 of the Act. Until its amendment in 2008, s 111 of the Act stated that:

(3) After a jury has retired to consider its verdict and before it has given its verdict or been discharged from giving its verdict, there must not be any communication between a juror and a person who is not a juror, other than the judge or the court officer in charge of the jury.

(4) Despite subsection (3), the judge may permit a juror and a person who is not a juror to communicate subject to any condition that the judge thinks necessary to impose in the interests of justice.

50 The practical effect of this provision was to prevent jurors from separating between commencement of deliberations and delivery of verdict, other than to go to a place of accommodation where they would be kept in isolation. In this environment, when deliberations had not been completed by the end of a normal business week, it was not uncommon for judges to allow jurors to meet and continue their deliberations over at least part of the weekend, given that they were to be sequestered and kept in isolation in any event.

51 Laws and practices preventing jurors from separating during the course of deliberations were progressively abandoned by all Australian jurisdictions, in favour of conferring a discretion upon the trial judge as to whether the jury would be allowed to separate prior to verdict. Western Australia was one of the last Australian jurisdictions to confer that discretion upon a trial judge, when s 111 of the Act was amended in 2008. The section now provides:

(1) For the purposes of this section, a trial by jury begins when the first juror is sworn and ends when the jury gives or is discharged from giving its verdict and includes any period when the jury is considering its verdict and any period when the trial is adjourned.

(2) During a trial by jury -

(a) the jury must not separate unless permitted to do so under subsection (4)(a); and

(b) the jury must not leave the charge of a court officer during any adjournment of the trial, unless it has been permitted to separate under subsection (4)(a); and

(c) there must not be any communication between a juror and a person who is not a juror, except as permitted under subsection (4)(b).

(3) Subsection (2)(c) does not apply to any communication between a juror and the judge or the court officer in charge of the jury, or by a party to the trial to the jury as part of the ordinary course of the trial.

(4) Despite subsection (2), the judge -

(a) may permit the jury to separate during any adjournment of a trial by jury subject to any condition that the judge thinks necessary to impose in the interests of justice; and

(b) may permit a juror and a person who is not a juror to communicate subject to any condition that the judge thinks necessary to impose in the interests of justice.

(5) If subsection (2) or a condition imposed under subsection (4) is contravened, the judge may discharge the jury from giving its verdict, if it is in the interests of justice to do so.

(6) A juror who contravenes subsection (2) or a condition imposed under subsection (4) is guilty of an offence and is liable to a fine of $12 000 or imprisonment for 12 months.

(7) A person who contravenes subsection (2)(c) or a condition imposed under subsection (4)(b) is guilty of an offence and is liable to a fine of $12 000 or imprisonment for 12 months.

52 The Explanatory Memorandum for the amending legislation described the amendment as giving 'a trial judge discretion as to whether or not the jury should be sequestered or to suspend deliberations. That is a position consistent with the trend toward more flexible jury arrangements which are exercised in other States' (Explanatory Memorandum, Criminal Law and Evidence Amendment Bill 2006 (WA), 5).

53 It is clear that s 111 now confers a discretion upon the trial judge to permit the jury to separate notwithstanding that deliberations have commenced. Counsel for the appellant did not submit otherwise. It was, however, submitted that the exercise of the discretion miscarried in this case, for the reasons given in the particulars in ground 2. It is useful to commence by considering the nature of the discretion conferred by the section.

The cases dealing with the exercise of a discretion to allow jurors to separate

54 Brownlee v The Queen was concerned with the constitutional validity of the application of certain provisions of the Jury Act 1977 (NSW) in the trial of a Commonwealth offence. The relevant provisions were s 22, which permitted a trial to continue, and a verdict to be taken from a jury where the number of available jurors had fallen below 12 (but not below 10), and s 54 which conferred upon the trial judge a discretion to permit the jury to separate notwithstanding that they had retired to consider their verdict.

55 As I have noted, Gleeson CJ and McHugh J remarked upon the evolving nature of the process of trial by jury which they described as 'constantly changing' [12]. In that context they referred to practices relating to the separation of jurors in these terms:

One aspect of the jury system that must be capable of changing, and adapting to the circumstances of the time, is the measures that are taken to guard against the danger of jurors being subjected to improper outside influence. That is because the danger itself changes with varying social conditions and methods of communication. Keeping jurors separate during all or part of a trial is only one way of addressing the danger. Jurors are given warnings by trial judges, aimed at reducing the possibility of external influence. Their anonymity is protected so far as practicable. But the potential sources of improper influence are various, and the legislation presently in question is a recognition of the fact that isolating jurors, especially during lengthy trials, may properly be regarded by a trial judge as an unnecessarily oppressive means of achieving the desired end. The ultimate protection in every case must lie in the sense of responsibility of jurors themselves. In 1910, Holmes J, delivering the opinion of the Court, said in Holt v United States:

'... there is force in the judge's view that if juries are fit to play the part assigned to them by our law they will be able to do what a judge has to do every time that he tries a case on the facts without them ...'

The discretion that is reposed in a trial judge by s 54(b) of the Jury Act enables the judge to form an opinion, in the circumstances of a particular case, as to whether separation is incompatible with the need to protect the integrity of the jury's verdict. It is not an essential requirement of trial by jury that there be an inflexible general rule forbidding separation during the whole or any part of a trial [27] - [28]. (citations omitted)

56 After reviewing historical practices with respect to the sequestration of jurors prior to federation, Gaudron, Gummow and Hayne JJ observed:

It may be accepted that what in the past was the strict sequestration of the jury promoted deliberation and attention to the evidence, without distraction of other material not in evidence and the threat of influence by outsiders upon that deliberation. This supported the determination of guilt according to law, with the interposition between the accused and the prosecution of 'the commonsense judgment of a group of laymen'.

However, strict confinement may have retarded rather than encouraged measured group deliberation and, in former times, appeared to be calculated to pressure jurors to reach a unanimous verdict and to do so with expedition. In modern times, the tendency of the law, marked at the time of federation, has been to place more reliance upon the capacity of jurors to heed the directions of the presiding judge as to the conduct of their deliberations, to attend to the evidence and to resist outside influences [65] - [66]. (citations omitted)

57 Their Honours expressly adopted observations made by Grove J in the Court of Criminal Appeal of New South Wales (R v Brownlee (1997) 41 NSWLR 139):

The argument that total and continuing isolation is essential to the meaning of the expression 'trial by jury' where used in s 80 of the Constitution rings a little hollow however in the age of mass communication. Actual and potential threats to jury integrity may arise during separations before retirement for deliberation and there is apparent community acceptance that safeguards inherent in the trial process and the supervision of the presiding judge suffice. I perceive no vice in allowing the members of a deliberating jury being dispersed to go about their lawful occasions and reassembling in traditional privacy. It is to be noted that such dispersal occurs as a result of the exercise of discretion in each case and any relevant prevailing circumstances must necessarily be taken into account in deciding whether the jury should or should not remain sequestered (145 - 146).

58 Kirby J also referred to the evolution of practices with respect to the management and handling of jurors consistently with changing community standards:

In earlier times, at least in the estimation of some judges, jurors were 'comparatively ignorant, subject to the control of their superiors and easily led astray'. In such times, it was easier for the authorities to leave jurors '"without meat or drinke, fire or candle" until they were starved or frozen into agreement'. If they were unable to reach their verdict, the hapless jurors of those days were driven to the county boundary following the assize judge. Such notions are completely incompatible with the treatment of a jury of Australian citizens today. No historical customs of England or of colonial times in Australia, in 1900 or otherwise, could sustain such treatment.

Yet it was not only in colonial times that jurors were dealt with in ways that are now regarded as uncivilised. For the first half of the twentieth century, with all male juries, jurors refused separation were often accommodated in dormitory arrangements that would now be regarded as intolerable. The extent of the change is described by Fullagar J in Chaouk. What would once have been regarded as a 'gross irregularity in the trial' can, therefore, today, be seen as a necessary accommodation to ensure the operation and survival of jury trial in contemporary Australia.

To exclude from a jury parents with young children or persons caring for sick and elderly relatives, because they could not be separated from their domestic responsibilities for long, or even comparatively short, intervals would reduce considerably the cross-section of the community from whom jurors were drawn. Effectively to impose on jurors a requirement to reach a verdict in haste, in order to avoid the domestic inconvenience of prolonged confinement, could also be seriously unjust both to the parties and the community. To the extent that the circumstances of jury service are unreasonably oppressive and disturbing of the home-life of jurors, it is likely that such considerations would, in practice, result in jurors drawn from a narrow class of citizens. Alternatively, jurors might set about their duties in circumstances that were not conducive to their proper performance of such duties.

It is for reasons such as these that the features of jury trial in Australia continue to evolve [151] - [154]. (citations omitted)

Juries were kept together during a trial at the time of Federation, and often, in situations that modern Australians would find abhorrent. It is also true that a very strict approach would be taken once a jury had commenced its deliberations to ensure that jurors not be subjected to the possibility of external influence in arriving at their verdict.

But before Federation, legislative provisions were introduced into a number of jurisdictions, including Queensland and Western Australia, expressly permitting a jury to separate, at least prior to the commencement of its deliberations.

No doubt it is, in general, desirable that, at least from the time that a jury's deliberations begin, they remain together. But the fact that a jury may, and has separated, will not necessarily impair or destroy the essential character of the jury as a jury. If in fact, by reason of separation a juror or jurors act improperly or become subjected to influences to which they should not have been subjected, that circumstance will require consideration and an appropriate response by a trial judge [188] - [190]. (citations omitted)

60 All members of the court in Brownlee v The Queen endorsed the proposition that practices with respect to jury management should change and evolve in accordance with changing community standards and expectations. In that context, all members of the court endorsed the constitutionality, and the desirability of the conferral of a discretion to permit a trial judge to allow jurors to separate notwithstanding that they had retired to consider their verdict, while acknowledging that there will be some cases in which jurors should be sequestered after their deliberations have commenced.

61 Other decisions emphasise the discretionary nature of the powers conferred upon a trial judge by s 54 of the Jury Act 1977 (NSW). For example, in R v Radju [2001] NSWCCA 103, Wood CJ, with whom Giles JA and Simpson J agreed, observed:

[Section] 54 again alters the common law rule that, once a jury retired to consider its verdict, it should be sequestered and not allowed to separate. The [Jury Act] now reserves for a trial judge a discretion to permit the jury to separate. There will naturally be exceptional cases where that should not occur, as there will routinely be cases where it might be expected that the jury would be allowed to separate [38].

See also Gargan v Director of Public Prosecutions (NSW) [2004] NSWSC 10.

62 In Victoria, s 51A of the Juries Act 2000 (Vic) confers a discretion upon a trial judge to allow a jury to separate even after it has commenced its deliberations, but only after taking an oath not to discuss with any person, other than another member of the jury, any matter relating to the trial. The discretionary nature of the powers conferred by the section (or earlier equivalents) has been referred to in a number of cases - see R v Patton [1998] 1 VR 7; R v Appleby (1996) 88 A Crim R 456, 483; R v Evans (1995) 79 A Crim R 66.

63 In South Australia, s 55 of the Juries Act 1927 (SA) confers a discretion upon a trial judge to allow the jury to separate after deliberations have commenced, on such conditions as he or she may think fit. In R v Bridger [2003] SASC 180, the court described the section as conferring 'an unfettered discretion on the court to impose such conditions as are considered appropriate to the case' [74]. The court also observed:

Jurors who have been sent out to deliberate on their verdict have reached a critical stage in the performance of their duties. It would be appropriate, therefore, for a trial judge to reinforce warnings which may have been given earlier in the case about avoiding outside influence ... In some cases it might be appropriate for the trial judge to direct that there should be no discussion of the case amongst jurors who are about to adjourn overnight. However, such a direction was not essential in the present case [76].

64 As I have noted, in the present case, the trial judge reinforced directions he had given to the jury immediately after their empanelment with respect to keeping their own counsel and avoiding outside influence on each occasion when he permitted the jury to separate after the commencement of deliberations.

65 It is important to emphasise that there is no right of appeal from a decision of a trial judge made with respect to the exercise of the discretion conferred by s 111 of the Act, and this is not such an appeal. This is an appeal against Mr Johnston's conviction of murder. The grounds upon which such an appeal can be brought are specified in s 30 of the Criminal Appeals Act 2004 (WA). The only ground which is relevant to this case is the ground of miscarriage of justice. Accordingly, in order to succeed in setting aside the appellant's conviction, it is necessary for the appellant to establish not only that the trial judge erred in the exercise of the discretion conferred upon him by s 111 of the Act, but also that the error resulted in a miscarriage of justice.

66 The distinction between an error in the exercise of a discretion, and a miscarriage of justice is of some significance in this case. The observations made by the trial judge before allowing the jury to separate on the evening of Friday, 6 May support an inference that he exercised the discretion conferred upon him by s 111 of the Act in the mistaken belief that there was no practical capacity to sequester the jury overnight, and that it was the inviolable practice of the court to never sequester jurors. Those mistaken beliefs are of a kind which would ordinarily vitiate the exercise of a discretionary power in accordance with the principles enunciated in House v The King [1936] HCA 40; (1936) 55 CLR 499. However, an error in the exercise of a discretion of the kind conferred by s 111 of the Act will not sustain the conclusion that there has been a miscarriage of justice unless it can be reasonably concluded that the error resulted in a trial which took place otherwise than according to law, because the integrity of the deliberations of the jury was compromised in some manner.

67 The same distinction supplies a complete answer to an argument advanced by counsel for Mr Johnston during the hearing of the appeal. It was pointed out to counsel that no objection was taken to the separation of the jury after it had commenced deliberations on the evening of Thursday, 5 May, either at the time or on appeal. In that context, counsel was asked why any different considerations applied when the trial judge determined whether or not the jurors would be permitted to separate on the evening of Friday, 6 May (appeal ts 12 - 13). In response, counsel suggested that the error of the trial judge was not in allowing the jurors to separate over the evening of Friday, 6 May, but in failing to require them to return to their deliberations on the morning of Saturday, 7 May (appeal ts 13). Leaving to one side the fact that this proposition is nowhere to be found in ground 2 or its particulars, at best the proposition, even if accepted, could only establish an error in the exercise of discretion by the trial judge. But unless and until it could be reasonably concluded that the failure to require the jury to resume their deliberations on the morning of Saturday, 7 May, and allowing them instead to resume their deliberations on the morning of Monday, 9 May, had some impact upon those deliberations or the course of the trial, the proposition falls short of establishing a miscarriage of justice by failing to establish a trial which took place other than according to law.

68 For reasons which I will develop more fully, the distinction between an error in the exercise of discretion and a miscarriage of justice is fatal to the success of ground 2, as there is simply no evidence that the integrity of the jury process was compromised in any way, and therefore no evidence capable of sustaining the conclusion that there was a miscarriage of justice.

69 It is not disputed that s 111 of the Act conferred upon the trial judge a discretion to permit the jury to separate on the afternoon of Friday, 6 May. Nor is it disputed that the trial judge was entitled to take into account considerations of the kind identified in the cases to which I have referred. During the course of discussion with counsel on the evening of Thursday, 5 May, the trial judge referred to one of those considerations - namely, his view that requiring the jury to deliberate over the weekend (whether sequestered or not) would place them under pressure to arrive at a hasty verdict. It has not been suggested, nor could it be credibly suggested that this was not a valid consideration. However, it is asserted that the discretion miscarried, and occasioned a miscarriage of justice, because of the matters specified in the particulars to ground 2. It is appropriate to now turn to those particulars.

70 This particular relies upon his Honour's erroneous assertion that the court had no facility to provide accommodation for jurors. As I have already observed, while this might be sufficient to establish an error in the exercise of discretion, it manifestly falls short of establishing a miscarriage of justice unless the consequence of the decision to allow the jury to separate was to permit improper communications between any member or members of the jury and others who were not members of the jury during the period of separation, or to permit extraneous influences to be brought to bear upon the deliberations or verdict of the jury. As those are matters addressed in subsequent particulars, it is unnecessary to consider this particular any further, as it is incapable of establishing a miscarriage of justice of itself.

71 This particular asserts that there was a risk that jurors would discuss the matter over the weekend with persons not part of their jury. That proposition is obvious, and must be accepted. There is always a risk that jurors will discuss matters relevant to their deliberations with persons who are not members of the jury. However, the legislature has conferred upon trial judges a discretion whereby that risk can be balanced against various other relevant factors, including the adverse consequences of managing juries in a way that might be considered oppressive by contemporary community standards, as identified in Brownlee v The Queen, and the risk of placing pressure upon a jury to arrive at a hasty verdict, to which the trial judge in this case expressly referred.

72 In this case there is no evidence to suggest that any member of the jury communicated with any person who was not a member of the jury in relation to matters associated with the trial over the weekend. In the absence of any such evidence, the existence of a risk of improper communication provides no basis for concluding either that the discretion miscarried, or that there was a miscarriage of justice.

73 Particular 2.3 complains that the trial judge failed to adequately direct the jury that they should keep their own counsel about the trial over the course of the weekend. This argument is difficult to comprehend, given the clear and unequivocal directions that were given by the trial judge to the jury immediately following their empanelment, and upon each occasion they separated following the commencement of their deliberations.

74 In the result, the argument advanced in support of this particular came down to pedantic arguments with respect to the precise words used by the trial judge, and in particular, a comparison of the words used on the Friday evening, as compared to the words used on the Thursday evening.

75 The thrust of the directions given on each occasion was clear and unequivocal. Each juror would have clearly understood that they were being reminded by the judge that they were required to decide the case by reference only to the evidence which they had heard in court, that they were not to make any of their own inquiries, and that they were not to discuss issues arising in the case with any person other than another member of the jury. The directions given were entirely adequate.

76 This particular asserts that there was a danger that publicity over the weekend may have adversely influenced the jury. Expressed in this way, the particular is vulnerable to the same criticism as the particular relating to improper communications between jurors and others - that is, the existence of a risk of extraneous influence cannot, of itself, establish either an error in the exercise of the discretion, or a miscarriage of justice.

77 Counsel for Mr Johnston sought to rely upon the additional evidence of the newspaper articles published over the weekend to overcome this obstacle (see [41] - [42] above). However, there is nothing in the articles which could have been taken by any reasonable juror to have any bearing upon any of the issues which he or she was required to decide in Mr Johnston's case. There was no doubt that there had been an unlawful killing - so much was admitted by Mr Johnston. Nor was there any real doubt that the death of Ms Van Dongen was caused by acts done in the prosecution of an unlawful purpose - namely, burglary for the purpose of attempting to steal money or drugs. Nor was there any doubt that the savage assaults which resulted in the death of Ms Van Dongen were acts of a nature as to be likely to endanger human life.

78 The real issue in the case, as presented to the jury, was whether the jury could satisfied beyond reasonable doubt that it was Mr Johnston who had inflicted the assaults upon Ms Van Dongen which caused her death, given the prospect that the assaults may have been committed by Mr Hishmeh. Put bluntly, the task before the jury was to evaluate the 'cut throat' defence presented by each accused, and to determine whether they were satisfied beyond reasonable doubt of the guilt of one or the other or both of them.

79 In that context, newspaper articles dealing with indiscriminate violence induced by drunkenness in the entertainment suburbs of Perth had no relevance whatever to any of the issues that were likely to be engaging the minds of the jurors over the weekend, if indeed they were thinking about the trial. While I would infer that one or more of the jurors were likely to have seen and read part of or perhaps all of the articles, there is no basis for the proposition that the articles would have had any impact whatsoever upon their assessment of the issues under consideration in the trial of Mr Johnston. The articles are irrelevant to the

issues in this appeal and for that reason their tender in evidence should be rejected.

80 In the absence of any evidence to the effect that there was any extraneous influence upon the jurors or their deliberations over the weekend of 7 - 8 May, particular 2.4 must be rejected.

81 In summary, although particular 2.1 provides a basis for concluding that there may have been an error in the exercise of the discretion with respect to the separation of the jury, none of the matters identified in the particulars, or in argument, either singly or in combination, provide any basis for concluding that the decision to allow the jury to separate over the weekend resulted in a miscarriage of justice. Ground 2 must be dismissed.

82 The question of whether leave to appeal should be granted on ground 1 was referred to this court. Leave to appeal on that ground should be refused, as the ground is misconceived. Leave to appeal has been granted in respect of ground 2. However, that ground should be dismissed. The appeal against conviction should be dismissed.

83 BUSS JA: The appellant was convicted, after a trial in the Supreme Court before EM Heenan J and a jury, of the murder of Christine Patricia Van Dongen.

85 The relevant facts and circumstances are set out in the reasons of Martin CJ. I will not repeat them except to the extent necessary to explain my reasons.

The grounds of appeal and the application for leave to adduce additional evidence

87 Ground 1 alleges that there was a miscarriage of justice at the trial as a result of the trial judge having 'failed to adequately direct the jury that the test for s 279(1)(c) in the Criminal Code was objective'.

88 Ground 2 alleges that there was a miscarriage of justice at the trial when his Honour, over objection, permitted the jury 'in the course of their deliberations to separate over the weekend of 7 and 8 May 2011'.

89 On 25 August 2011, the appellant filed an application in the appeal for leave to adduce additional evidence in relation to ground 2.

90 On 28 August 2011, Mazza J granted leave to appeal on ground 2, and referred the application for leave to appeal on ground 1, and the application for leave to adduce additional evidence in relation to ground 2, to the hearing of the appeal.

91 On 1 August 2008, s 10 and s 19 of the Criminal Law Amendment (Homicide) Act 2008 (WA) came into operation. The offence of wilful murder and the penalty of strict security life imprisonment were abolished. Also, the then existing offence of murder was repealed. A new offence of murder was created with accompanying changes to the penalty.

92 Parliament enacted the new offence of murder (including the accompanying sentencing framework) in response to the Law Reform Commission of Western Australia's final report on the law of homicide. See The Law Reform Commission of Western Australia, Review of the Law of Homicide, Project 97, Final Report (2007).

93 Section 279 of the Criminal Code (WA) (the Code), as currently enacted, which created the new offence of murder, reads, relevantly:

(1) If a person unlawfully kills another person and -

(a) the person intends to cause the death of the person killed or another person; or

(b) the person intends to cause a bodily injury of such a nature as to endanger, or be likely to endanger, the life of the person killed or another person; or

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

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

(2) For the purposes of subsection (1)(a) and (b), it is immaterial that the person did not intend to hurt the person killed.

(3) For the purposes of subsection (1)(c), it is immaterial that the person did not intend to hurt any person.

...

(a) Section 279(1)(a) reflects the definition of wilful murder under the previous legislative scheme.

(b) Section 279(1)(b) reflects, in part, that limb of the definition of murder under the previous legislative scheme which referred to the accused intending to do to the person killed, or to some other person, some 'grievous bodily harm'. However, s 279(1)(b) embodies only that part of the definition of 'grievous bodily harm' in s 1(1) of the Code which refers to 'any bodily injury of such a nature as to endanger, or be likely to endanger life'. It does not embody that part of the definition which refers to 'any bodily injury of such a nature as ... to cause, or be likely to cause, permanent injury to health'.

(c) Section 279(1)(c) reflects that part of the definition of murder under the previous legislative scheme which referred to the death being caused by means of an act done in the prosecution of an unlawful purpose, which act was of such a nature as to be likely to endanger human life.

95 Section 279(1)(c) comprises three elements. First, there must be an unlawful killing. Secondly, the death must have been caused by means of an act done by the accused in the prosecution of an unlawful purpose. Thirdly, the act must be of such a nature as to be likely to endanger human life.

96 As to the first element, the unlawful killing must have been a willed or voluntary act of the accused. See s 23A of the Code; Macartney v The Queen [2006] WASCA 29; (2006) 31 WAR 416 [109] - [110] (Steytler P).

97 As to the second element, the act by means of which the death was caused must have been done 'in' the prosecution of an unlawful purpose. The unlawful purpose must be separate from the act which caused the death. See Hughes v The Queen [1951] HCA 34; (1951) 84 CLR 170, 174 - 175 (Dixon, McTiernan, Williams, Fullagar & Kitto JJ); R v Gould & Barnes [1960] Qd R 283, 292 (Philp J, Mansfield CJ agreeing); Stuart v The Queen [1974] HCA 54; (1974) 134 CLR 426, 438 - 440 (Gibbs J, Menzies & Mason JJ agreeing); Macartney [112] (Steytler P).

98 As to the third element, the act must be 'of such a nature as to be likely to endanger human life' (emphasis added). The words I have emphasised connote an act which, regarded objectively, is of such a nature as to give rise to a substantial, real and not remote chance that the life of the victim would be endangered. That is, the act must 'in fact' have been of such a nature as to be likely to endanger human life. See Gould & Barnes (298); Stuart (438); Macartney [113] (Steytler P), [139] (Wheeler JA); Wongawol v The State of Western Australia [2011] WASCA 222 [22] (McLure P, Buss JA & Mazza J agreeing).

99 In the present case, the relevant count in the indictment alleged that the appellant and his co-accused, Samir Hishmeh, had murdered the victim.

(a) On 3 January 2010, the appellant, Mr Hishmeh and a third person went to the victim's home in Mount Nasura, intending to rob her of money and/or drugs they believed were there. The appellant and Mr Hishmeh entered the victim's home.

(c) During the intended robbery, the victim and Bradley Deliu, who was at the victim's home to purchase a small quantity of drugs, were deprived of their liberty by the appellant and Mr Hishmeh, while they searched and ransacked the house for money and drugs.

(d) The victim was bound with cable ties, and Mr Deliu was forced to lie on the floor.

(e) During the intended robbery, the victim was savagely beaten, including with fists and a hammer. She was also choked.

(f) On 5 January 2010 (being two days after the intended robbery), the victim died in hospital from head and neck injuries inflicted during the assault.

101 Before the commencement of the trial, the appellant pleaded guilty to three offences. First, that on 3 January 2010 he had committed the offence of aggravated burglary at the victim's home. Secondly, on the same date and at the same place, the appellant unlawfully detained the victim. Thirdly, on the same date and at the same place, the appellant unlawfully detained Mr Deliu.

102 The appellant did not give or adduce any evidence at the trial. His counsel submitted to the jury that the evidence did not establish, and certainly did not establish beyond reasonable doubt, that the appellant had caused the victim's death. His counsel also submitted that there was no evidence to suggest that the appellant had planned to kill the victim, or to cause her serious harm or an injury of such a kind as would be likely to endanger her life or the life of any other person.

103 Mr Hishmeh gave sworn evidence in his own defence at the trial. His counsel submitted to the jury that Mr Hishmeh had not committed any offence. His counsel also submitted that there was no reliable evidence to establish that Mr Hishmeh had struck or assaulted the victim, and no reliable evidence to support a conclusion that he had encouraged or assisted the appellant in the appellant's assault on the victim. According to Mr Hishmeh, he had no inkling of any unlawful purpose associated with the visit to the victim's house. He was merely asked to accompany the appellant on a visit to a person to collect a debt. Mr Hishmeh asserted that he understood his physical presence would be of sufficient significance to ensure there would be no trouble, and no-one would interfere, in the collection of the debt. He was utterly taken by surprise when the appellant commenced assaulting the victim.

104 The State contended, relevantly, that each of the appellant and Mr Hishmeh was guilty of murder under either s 279(1)(b) or s 279(1)(c) of the Code.

105 After directing the jury on the elements of s 279(1)(b), the trial judge gave these instructions as to s 279(1)(c):

[T]he prosecution also alleges that even if you were not satisfied, beyond reasonable doubt, that the person who inflicted the injuries intended to cause bodily injury of that nature, it would still be murder, under section 279(1)(c), if the person unlawfully killed Ms Van Dongen and her death was caused by means of an act done in the prosecution of an unlawful purpose, which act is of such a nature as to be likely to endanger human life.

So in this case, there is no element of intent by the person who caused the death. It's simply a question of whether the death was caused by means of an act. That is, the blows, or the assaults, or one of them, done in the prosecution of an unlawful purpose.

Was there an unlawful purpose being prosecuted? Well, the woman was being assaulted on the version of events which the prosecution is advancing, that was done in the course of effecting, or attempting to [e]ffect, a robbery. If you were to accept that that was the case, that would certainly be an unlawful purpose.

And was the act, which caused the death, of such a nature as to be likely to endanger human life? In other words, were the fatal acts, whether the punching to the head and/or the choking and further punching, of such a nature as to be likely to endanger human life? If you were satisfied, beyond reasonable doubt, that death was caused in that way, by means of acts; choking, punching, et cetera ... when I say 'et cetera' I mean further punching and further choking, by means of acts done in the prosecution of an unlawful purpose, were those acts of such a nature as to be likely to endanger human life, you would be justified, indeed compelled, to return a verdict of murder, even if there was no intent to cause a bodily injury of such a nature as to endanger, or be likely to endanger the life of the person killed.

When I say you would be justified or compelled to return a verdict of murder, that would be the case, in relation to the man who did those acts, so we go back to section 7(a) (ts 1681 - 1682). (emphasis added)

106 Counsel for the appellant submitted to this court that 'the jury ought to have been told that whether or not the act was of such a nature as to be likely to endanger human life is a matter for them to determine objectively' (appeal ts 3). Counsel added that by 'objectively' he meant 'not looking at it from the point of view of what the accused's intention was in carrying out that act' (appeal ts 3 - 4).

107 The adequacy of his Honour's instructions concerning s 279(1)(c) must be evaluated against the background of the matters that were, in substance, in issue at the trial. First, there was no doubt that the victim had been killed. Secondly, it was not suggested that the killing was caused by an unwilled or involuntary act. Thirdly, it was not suggested that the killing was not unlawful. For example, neither provocation nor self-defence was left to the jury. Fourthly, Mr Hishmeh, in essence, blamed the appellant for the savage beating that was undoubtedly inflicted on the victim. Fifthly, it was not seriously in contest that the victim had been killed 'in' the prosecution of an unlawful purpose, namely the commission or attempted commission of a robbery. Sixthly, the appellant, by his pleas of guilty to the other offences, admitted that on the relevant date he had burgled the victim's home in circumstances of aggravation and had unlawfully detained the victim and Mr Deliu. Seventhly, as to the appellant, the only matters that were, in substance, in issue in relation to s 279(1)(c) were whether the jury was satisfied beyond reasonable doubt that the acts which caused the victim's death had been done by the appellant and, if so, whether the jury was satisfied beyond reasonable doubt that the acts in question were of such a nature as to be likely to endanger human life.

108 In my opinion, on a fair reading of the critical passage in the trial judge's summing up in the context of the summing up as a whole, his Honour did not misstate any of the elements of s 279(1)(c) or mislead the jury in relation to them.

109 The jury would have understood (correctly) that the acts relied on by the State were blows inflicted with fists and a hammer, and choking. Also, the jury would have understood (correctly) that if it was satisfied beyond reasonable doubt that the acts which caused the victim's death were done by the appellant, then it must assess the nature and quality of those acts to determine whether it was satisfied beyond reasonable doubt that they were in fact of such a nature as to be likely to endanger human life. Further, the jury would have understood (correctly) that, in making this assessment, the appellant's subjective intention was irrelevant; that is, the assessment of the nature and quality of the relevant acts involved a question of fact and, in that sense, had to be determined objectively.

110 It is of some significance that the appellant's experienced defence counsel and Mr Hishmeh's very experienced senior counsel, who are both criminal law specialists, did not complain to the trial judge about his directions on the elements of s 279(1)(c). No additional direction or redirection was sought as to the elements of s 279(1)(c).

111 Ground 1 is without merit, and leave to appeal on that ground should be refused.

The merits of the application for leave to adduce additional evidence

112 I agree with Martin CJ, for the reasons he gives, that the application for leave to adduce additional evidence should be dismissed.

113 I agree with Martin CJ, for the reasons he gives, that ground 2 fails.

114 Leave to appeal on ground 1 should be refused, the application for leave to adduce additional evidence should be dismissed, and the appeal should be dismissed.

115 MAZZA JA: I have read in draft the reasons of Martin CJ and Buss JA.

116 I agree that the application to adduce other evidence must be refused and the appeal against conviction dismissed.

117 With respect to ground 1, I respectfully adopt Buss JA's observations on s 279 of the Criminal Code (WA), at [94], and his description of the elements of s 279(1)(c), between [95] - [98]. I also agree with him, for the reasons he gives, that the learned trial judge's directions with respect to s 279(1)(c), when read as a whole, were not erroneous.

118 I agree with Martin CJ's observations that, in relation to his Honour's directions with respect to s 279(1)(c), it was quite unnecessary and very probably confusing for the jury to have been directed as to the distinction between subjective and objective states of mind. The ground is, as he concludes, misconceived.

119 Finally, I join with Buss JA in agreeing with Martin CJ's reasons and conclusion in respect of ground 2.