Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Criminal law - Appeal against conviction - Appellant convicted after a joint trial with a co­accused of one count of murder - Cut­throat defences - Co­accused relied on the defence of duress - Whether and if so in what circumstances a co­accused can adduce evidence of the other accused's propensity to commit other offences - Whether failure to order separate trials resulted in a miscarriage of justice - Co­accused failed to satisfy the evidentiary burden for the defence of duress - Whether the trial judge's directions were capable of overcoming any relevant prejudice to the appellant

Criminal law - Appeal against conviction - Corroboration warning - State witness assisted the appellant and the co­accused to hide and destroy evidence relating to the deceased's murder - Whether the trial judge's refusal to give a corroboration warning in relation to the State witness occasioned a miscarriage of justice

Criminal law - Appeal against sentence - Appellant sentenced to life imprisonment with a minimum non­parole period of 26 years - Whether the minimum non­parole period was manifestly excessive

Criminal Procedure Act 2004 (WA), s 116, s 133, sch 1 cl 9(2)

Ali v The Queen [2005] HCA 8; (2005) 79 ALJR 662

Angliss v The State of Western Australia [2015] WASCA 8

Atherden v The State of Western Australia [2010] WASCA 33

Austic v The State of Western Australia [2010] WASCA 110

Bugmy v The Queen [1990] HCA 18; (1990) 169 CLR 525

Butler v The State of Western Australia [2010] WASCA 104

Carr v The Queen [1988] HCA 47; (1988) 165 CLR 314

Carranceja v The Queen (1989) 42 A Crim R 402

Cecez v The State of Western Australia [2007] WASCA 260; (2007) 35 WAR 344

Cockram v The State of Western Australia [2011] WASCA 179

Corbett v The State of Western Australia [2016] WASCA 97

Crampton v The Queen [2000] HCA 60; (2000) 206 CLR 261

Crossland v The State of Western Australia [2016] WASCA 93

Deakin v The Queen [1984] HCA 31; (1984) 58 ALJR 367

Director of Public Prosecutions v Faure [1993] VicRp 87; [1993] 2 VR 497

Dunn v The Queen [2015] WASCA 126; (2015) 252 A Crim R 147

Dupas v The Queen [2010] HCA 20; (2010) 241 CLR 237

Fleming v The Queen [1998] HCA 68; (1998) 197 CLR 250

Foo v The Queen [2001] WASCA 406; (2001) 167 FLR 423

Gilbert v The Queen [2000] HCA 15; (2000) 201 CLR 414

Goodwyn v The State of Western Australia [2013] WASCA 141; (2013) 45 WAR 328

Ignjatic v The Queen (1993) 68 A Crim R 333

Johnston v The State of Western Australia [2012] WASCA 18

Jones v The Queen [2009] HCA 17; (2009) 83 ALJR 671

Khan v The State of Western Australia [2013] WASCA 193

Knight v Jones; Ex parte Jones [1981] Qd R 98

Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79

Lowery v The Queen [1974] AC 85

Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665

Mack v The State of Western Australia [2014] WASCA 207

McIntosh v The State of Western Australia [2017] WASCA 45

McKay v The State of Western Australia [2007] WASCA 196

Milne v The State of Western Australia [2005] WASCA 38

Pedersen v The State of Western Australia [2010] WASCA 175

Power v The Queen [1974] HCA 26; (1974) 131 CLR 623

Prestidge v The State of Western Australia [2014] WASCA 16

Questions of Law Reserved (No 3 of 1997) [1998] SASC 7135; (1998) 70 SASR 555

R v Beckett [2009] QCA 196; [2011] 1 Qd R 259

R v Darrington [1980] VicRp 36; [1980] VR 353

R v Farrell (1990) 48 A Crim R 311

R v Fernando [1999] NSWCCA 66

R v Gibb [1983] VicRp 78; [1983] 2 VR 155

R v Jones (1991) 55 A Crim R 159

R v Katipa [1986] 2 NZLR 121

R v Lowery (No 3) [1972] VicRp 109; [1972] VR 939

R v Mertens [2004] EWCA Crim 2252; [2005] Crim LR 301

R v Murrell [2005] EWCA Crim 382; [2005] Crim LR 869

R v N (No 3) [2010] SASC 7

R v Olsen (Unreported, NSWCCA, Library No 436 of 1987, 9 February 1989)

R v Patsalis [1999] NSWSC 649; (1999) 107 A Crim R 432

R v Pham [2004] NSWCCA 190

R v Price [2004] EWCA Crim 1359; [2005] Crim LR 304

R v Randall [2003] UKHL 69; [2004] 1 WLR 56

R v Robinson [2005] EWCA Crim 3233; [2006] 1 Cr App R 32

R v Roughan [2007] QCA 443; (2007) 179 A Crim R 389

R v Stewart [2014] QCA 244

R v Swan [2013] QCA 217

R v Webb (1992) 59 SASR 563

R v Winning [2002] HCA Trans 276

R v Wooding (1980) 70 Cr App R 256

Rosewood v The State of Western Australia [2014] WASCA 21

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

Silva v The State of Western Australia [2013] WASCA 278

Smith v The State of Western Australia [2008] WASCA 128; (2008) 37 WAR 297

Stinson v The State of Western Australia [2014] WASCA 72

Taylor v The State of Western Australia [2016] WASCA 210

The State of Western Australia v Bowen [2006] WASCA 133; (2006) 32 WAR 81

The State of Western Australia v Churchill [2015] WASCA 257

The State of Western Australia v Lee [2013] WASCA 246

The State of Western Australia v Micalizzi [2010] WASCA 147

The State of Western Australia v O'Kane [2011] WASCA 24

The State of Western Australia v Silich [2011] WASCA 135; (2011) 43 WAR 285

The State of Western Australia v Smith [2015] WASCA 87; (2015) 250 A Crim R 468

The State of Western Australia v Stoeski [2016] WASCA 16

The State of Western Australia v Tolliday [2004] WASC 231

Webb v The Queen [1994] HCA 30; (1994) 181 CLR 41

White v The Queen [2006] WASCA 62

Winning v The Queen [2002] WASCA 44

Wongawol v The State of Western Australia [2011] WASCA 222; (2011) 42 WAR 91

Zwerus v The State of Western Australia [2015] WASCA 174

1 BUSS P: The appellant appeals against conviction and sentence.

2 The appellant and Daniel Michael Marchesano were charged on indictment with one count of murder contrary to s 279 of the Criminal Code (WA) (the Code).

3 The count alleged that on 26 October 2013, at Pickering Brook, the appellant and Mr Marchesano murdered Michael Paul Pruiti (the deceased).

4 The appellant and Mr Marchesano pleaded not guilty to the charge.

5 Between 19 October 2015 and 12 November 2015, the appellant and Mr Marchesano were tried in the Supreme Court before Martino J and a jury.

6 On 12 November 2015, the jury delivered unanimous verdicts of guilty in respect of both the appellant and Mr Marchesano. His Honour entered judgments of conviction.

7 On 13 January 2016, the appellant was sentenced to life imprisonment with a minimum non-parole period of 26 years. The sentence was backdated to 18 December 2013.

8 I would dismiss the appeal against conviction and the appeal against sentence. My reasons are as follows.

9 The State's case was that the appellant and Mr Marchesano agreed to kill the deceased. Pursuant to the agreement, Mr Marchesano accompanied and guided the deceased, in the deceased's car, from Mr Marchesano's house at 126 Pickering Brook Road to an isolated bush site (Scene 1) in Pickering Brook on the pretext that they would collect some stolen chainsaws. However, by prior arrangement between the appellant and Mr Marchesano, the appellant was at Scene 1 armed with a loaded rifle.

10 A scale map of Pickering Brook and surrounding areas (exhibit 11) was tendered by the prosecutor through Detective Sergeant Christopher Turner. The map and Detective Turner's evidence (ts 649 - 650) established that the distance, by road, between 126 Pickering Brook Road and Scene 1 is about 3 km to 4 km. The road is partly bitumen and partly gravel. The route from 126 Pickering Brook Road to Scene 1 involves travelling along Pickering Brook Road, Davey Road, Carinyah Road and Westons Road. Scene 1 is adjacent to Westons Road.

11 When Mr Marchesano and the deceased arrived at Scene 1 the appellant killed the deceased by shooting him once in the head.

12 After the shooting, the appellant and Mr Marchesano dumped the deceased's body at a bush location about 3 km from Scene 1. About 10 days later, the appellant and Mr Marchesano, together with another man, Christian Gillmore, moved the deceased's body to a bush grave a few kilometres further away.

13 About six weeks later the deceased's body was found. The police carried out investigations. The appellant and Mr Marchesano were arrested and charged with the deceased's murder.

14 The State's case against the appellant relied substantially on the evidence of Mr Gillmore and Tessa Smillie. The appellant did not participate in an interview with police.

15 The State's case against Mr Marchesano relied substantially on Mr Gillmore's and Ms Smillie's evidence and also on admissions made by Mr Marchesano in electronically recorded interviews with police.

16 On 18 December 2013, being the day of his arrest, Mr Marchesano participated in electronically recorded interviews with police. The prosecutor tendered the records of interview as part of the State's case against Mr Marchesano.

17 During the initial interviews Mr Marchesano denied any involvement in the killing. He claimed that he had last seen the deceased during the week before the deceased was killed. However, in later interviews Mr Marchesano admitted that he had accompanied and guided the deceased, in the deceased's car, to Scene 1 on the pretext that they would collect stolen chainsaws and in the knowledge that the appellant was at Scene 1, armed with a loaded rifle, and had said he intended to shoot the deceased. Further, Mr Marchesano admitted being involved in moving the deceased's body twice and, also, being involved in destroying the deceased's car.

18 During the later interviews Mr Marchesano told the police that the only reason he had participated in the deceased's killing was because the appellant had threatened to kill him, his mother and his sister. Mr Marchesano said that everything he had done, including assisting in moving the deceased's body, was done because the appellant had threatened either him or members of his family.

19 The prosecutor informed the jury, at the conclusion of her opening address and in anticipation that Mr Marchesano would rely on the defence of duress under s 32 of the Code, that 'if any excuse [is] available the State says that this [is not] a case where it is open because [Mr Marchesano's] actions were simply not reasonable' (ts 196).

Overview of Mr Marchesano's case at the trial

20 At the trial Mr Marchesano's counsel made an opening statement.

21 Counsel told the jury that in October 2013 Mr Marchesano was living with his mother and sister at a semi-rural property in Pickering Brook. Mr Marchesano knew the deceased and, also, the appellant. Mr Marchesano had met the appellant through his (Mr Marchesano's) father. The three men lived in the same area and were involved in the use of illicit drugs.

22 Mr Marchesano's counsel said that Mr Marchesano was much younger than the appellant. Mr Marchesano was aged 18 years when the deceased was killed.

23 Counsel told the jury that before the deceased was killed Mr Marchesano was aware that the appellant had previously used violence and had previously behaved in a threatening manner.

24 Mr Marchesano's counsel said Mr Marchesano took 'little issue' with the State's case about what he had done on the night before the deceased was killed or about what had occurred on the following day in the lead up to the appellant, Mr Marchesano and Ms Smillie arriving at Mr Marchesano's house before the killing (ts 202). Counsel also said Mr Marchesano accepted that it was Mr Marchesano's communication with the deceased that resulted in the deceased coming to Pickering Brook during the afternoon of 26 October 2013.

25 However, according to his counsel, Mr Marchesano arranged for the deceased to come to Pickering Brook because the appellant had threatened to kill him, his mother and his sister, and when the threat was made the appellant was armed with a loaded rifle. Counsel elaborated:

Terrified that the older man would put his threats into action and aware of what this man was capable of and for those reasons alone, [Mr Marchesano] became a very reluctant and very frightened participant in [the appellant's] plans to kill [the deceased] (ts 203).

26 Later, Mr Marchesano's counsel referred to the defence of duress under s 32 of the Code and said:

[T]here is clear and compelling evidence that [Mr Marchesano] was forced to do what he did by the threatening and intimidating behaviour [of] a man who he knew had committed acts of violence in the past (ts 206).

27 Mr Marchesano did not give evidence at the trial. His counsel did not call any witnesses.

Overview of the appellant's case at the trial

28 At the trial the appellant's counsel made an opening statement.

29 Counsel told the jury that the State's case against the appellant depended on the evidence of Mr Gillmore and Ms Smillie. Without their evidence, there was no case against him. Both Mr Gillmore and Ms Smillie were 'tainted' because they were accomplices in the deceased's murder (ts 212 - 213). Accordingly, the State's case against the appellant rested on discreditable witnesses.

30 The appellant's counsel said that on 8 May 2014 Mr Gillmore pleaded guilty to the offence of accessory after the fact to the deceased's murder. He assisted in the disposal of the deceased's body and the rifle used to kill him. Mr Gillmore was sentenced on the basis that he would give evidence truthfully as a State witness at the trial of the appellant and Mr Marchesano. Before he was sentenced, Mr Gillmore had undertaken that he would give evidence truthfully and consistently with an account of events he had given to the police. If Mr Gillmore failed to assist the prosecution in accordance with his undertaking he could be brought back before the court and resentenced. Consequently, when giving evidence at the trial, Mr Gillmore had an obvious self-interest in maintaining the account he had given to the police, even if it was a false account.

31 Counsel said that in October 2013 Ms Smillie, who was a friend of Mr Marchesano, was an habitual user of methylamphetamine. She had not slept for a week prior to the deceased's death. Unlike Mr Gillmore, Ms Smillie had not been charged with any offence arising from her involvement in the matter. On 2 December 2013, Ms Smillie agreed to cooperate with the police after she was informed by one of the investigating police officers, Detective Sergeant Christopher Turner:

I don't want to see you go down the line as an accessory. I want to see you be a witness. I want to be able to look after you (ts 214).

32 The appellant's counsel told the jury that 'a great deal of emotion' had been put forward by Mr Marchesano's counsel as to why Mr Marchesano claimed to be acting under duress. Mr Marchesano's assertions in relation to duress were contained in his electronically recorded interviews with police. The appellant's counsel emphasised that none of those records of interview were admissible against the appellant. The fact that the appellant and Mr Marchesano were being tried together was 'like having two trials in one' (ts 215). There was some evidence admissible against one accused, some evidence admissible against the other accused and some evidence admissible against both of them. However, Mr Marchesano's electronically recorded interviews with police were not admissible against the appellant, and they had to be put to one side when the jury was considering what, if anything, the State had proved against the appellant.

33 Counsel suggested to the jury that Mr Marchesano's defence of duress had 'raised its ugly head' as 'a defence of last resort' (ts 216).

34 The appellant's counsel said that the appellant, through counsel and by virtue of his plea of not guilty, denied having killed the deceased. The appellant denied the State's claim that he had obtained a rifle with a telescope from his parents' home. He denied having been at Mr Marchesano's house on the afternoon of 26 October 2013. He denied having shot the deceased. The appellant claimed that he was not present when the deceased was killed.

35 The appellant did not give evidence at the trial. However, his counsel called the appellant's parents, Michael Mansfield and Atputhan Mansfield, and the appellant's partner, Stevie-Lee Kent, as witnesses.

The evidence relied on by the State at the trial in its case against Mr Marchesano

36 The State's case against Mr Marchesano was based primarily on admissions he made during his electronically recorded interviews with police on 18 December 2013.

37 During the interviews Mr Marchesano claimed that:

(a) Mr Marchesano had been drinking with the appellant.

(b) Mr Marchesano, the appellant and Mr Marchesano's friend, Ms Smillie, travelled to Mr Marchesano's house, at 126 Pickering Brook Road, in Ms Smillie's car.

(c) On the way to Mr Marchesano's house, they stopped at the appellant's parents' house. The appellant collected a wooden box from the house which he put on the back seat of the car. The box contained a gun.

(d) At Mr Marchesano's house, the appellant said that he was going to kill the deceased. The appellant instructed Mr Marchesano to arrange for the deceased to come to Mr Marchesano's house.

(e) When Mr Marchesano refused, the appellant said Mr Marchesano had no choice and if he did not comply the appellant would kill him and his mother and sister.

(f) Soon after that conversation, the deceased telephoned Mr Marchesano. Mr Marchesano invited the deceased to 'come catch up for a sesh'.

(g) The appellant instructed Mr Marchesano that, when the deceased arrived, Mr Marchesano must tell the deceased that he had some chainsaws in the bush which the deceased could sell.

(h) When they heard the deceased's car approaching, the appellant departed in Ms Smillie's car in order to hide in the bush.

(i) When the deceased arrived, Mr Marchesano told him the pre-arranged story about the chainsaws. Mr Marchesano and the deceased then went to Scene 1 in the deceased's car. The deceased drove in accordance with Mr Marchesano's directions. When Mr Marchesano saw Ms Smillie's car he instructed the deceased to stop and park.

(j) Mr Marchesano alighted from the deceased's car and walked away calling out 'Tessa'.

(l) Mr Marchesano had intended to hide in the bush. However, he was intercepted by the appellant who instructed him to return to Ms Smillie's car.

(m) When he returned, Mr Marchesano found the deceased's body on the back seat of the deceased's car.

(n) The appellant drove Ms Smillie's car to another location in the bush. The appellant had instructed Mr Marchesano to drive the deceased's car and follow him. Mr Marchesano did so.

(o) Mr Marchesano assisted the appellant to dig a hole at the other bush location. The deceased's body was placed in the hole. The appellant covered the body with branches and leaves.

(p) Mr Marchesano drove the deceased's car and the appellant drove Ms Smillie's car to Mr Marchesano's house.

(q) When they arrived at Mr Marchesano's house, Mr Marchesano burnt his clothes as directed by the appellant. The appellant burnt his own clothes. Mr Marchesano, the appellant and Ms Smillie were present when the clothes were burnt.

(r) The next day, Mr Marchesano and Ms Smillie accompanied the appellant to Bartons Mill. The appellant drove the deceased's car. Mr Marchesano and Ms Smillie travelled in another car. When they arrived at Bartons Mill, the appellant poured fuel into the deceased's car and set it alight. Mr Marchesano and Ms Smillie gave the appellant a lift to his home.

(s) About a week later, Mr Marchesano and Mr Gillmore accompanied the appellant to the place where the deceased's body had been dumped. They moved the body to another location where it was burnt and buried.

38 In one of the interviews, Detective Sergeant Paul Thornton asked Mr Marchesano, on two occasions, why he took the deceased to Scene 1, even though he had been told by the appellant that the deceased would be killed. Mr Marchesano explained, on each occasion, that he did not think that the appellant would actually kill the deceased.

39 As I have mentioned, Mr Marchesano elected not to give evidence or adduce any evidence at the trial.

40 Ms Smillie was a State witness at the trial. She corroborated in some respects Mr Marchesano's version of events in his interviews. In particular, Ms Smillie gave evidence that:

(a) She and Mr Marchesano met with the appellant during the morning of the day on which the deceased was killed.

(b) The appellant drove her car to an address which she believed was his parents' house. Mr Marchesano and Ms Smillie were passengers. The appellant parked the car and retrieved from the house a long wooden box which he placed in the car. The appellant then drove to Mr Marchesano's house.

(c) In Mr Marchesano's bedroom at his house, Mr Marchesano told her it was either she and Mr Marchesano, or the deceased, who would have to die.

(d) When she went into the carport she saw that the long wooden box contained a rifle with a telescope.

(e) Later, she saw the appellant drive her car away from Mr Marchesano's house. Shortly afterwards, she saw the deceased's car arrive. Mr Marchesano got into the deceased's car and they drove away.

(f) Mr Marchesano had told her that he and the appellant had arranged to meet the deceased in the bush. Mr Marchesano said they had told the deceased that they were meeting her in the bush so the deceased would not 'freak out' when he saw them.

(g) About an hour later, she saw Mr Marchesano and the appellant return to Mr Marchesano's house in different vehicles. A 'tarp' was placed over the deceased's vehicle.

(h) She saw Mr Marchesano and the appellant place the clothes that they had been wearing and parts of the rifle into a fire. The remaining parts of the rifle were taken away by the appellant's friend, Mr Gillmore.

(i) A day or two later, she accompanied Mr Marchesano in the deceased's vehicle to Bartons Mill. They were followed by the appellant who was driving Chloe Marchesano's (Mr Marchesano's sister's) car. When they arrived at Bartons Mill the appellant used fuel to set fire to the deceased's vehicle.

(j) On another occasion she accompanied Mr Marchesano and the appellant to a place where she saw Mr Marchesano pull out 'the top of [the deceased's] head'. She suggested that they pour acid on the body.

The evidence relied on by the State at the trial in its case against the appellant

41 The State's case against the appellant was based primarily on Ms Smillie's evidence and Mr Gillmore's evidence.

42 I have already summarised Ms Smillie's evidence.

43 Mr Gillmore was also a State witness at the trial. He gave evidence as to the assistance he provided to the appellant and Mr Marchesano in hiding or destroying evidence and in disposing of the deceased's body. He also gave evidence of admissions the appellant had made to the effect that the appellant had killed the deceased.

44 In particular, Mr Gillmore said in evidence that when the appellant and Mr Marchesano placed the deceased's body in a hole, in Mr Gillmore's presence, the appellant poured fuel on the body and said 'I'll see you in hell [the deceased] and I'll kill you again'. The State contended that in making that statement the appellant admitted that he had killed the deceased.

The evidence of the appellant's parents and the appellant's partner

45 The appellant's parents gave evidence to the effect that the appellant did not store and could not have stored a rifle at their home. He did not have a key to their house. He had ceased residing at their house about 12 months before October 2013.

46 The appellant's partner, Ms Kent, gave evidence that the appellant had been away from home throughout the night of 25 October 2013. He returned home at about 9.00 am or 10.00 am on 26 October 2013. She was very angry with him. The appellant remained at home in bed that day until Mr Marchesano arrived in the afternoon. The appellant then departed with Mr Marchesano. They departed 'later in the afternoon but before dinner' (ts 1109).

Mr Marchesano's attempt at the trial to rely on the defence of duress under s 32 of the Code

47 Mr Marchesano's counsel attempted in cross-examination of Detective Senior Constable Tracey Howell, who was an investigating police officer, to elicit evidence of the measures which the police could have taken to protect Mr Marchesano and his family from the appellant's threat had Mr Marchesano informed the police of the threat before he accompanied and guided the deceased to Scene 1, where the appellant was waiting (ts 970).

48 However, his Honour ruled that the evidence sought to be elicited by counsel was irrelevant and, accordingly, Detective Howell could not be cross-examined on the point.

49 After all of the evidence had been adduced, but before the commencement of the closing addresses, the trial judge heard submissions as to whether he should direct the jury to consider whether the State had proved beyond reasonable doubt that Mr Marchesano was not acting under duress, within s 32 of the Code, when he accompanied and guided the deceased to Scene 1 in the knowledge that the appellant was at Scene 1, armed with a loaded rifle, and had said he intended to shoot and kill the deceased (ts 1270 - 1283).

50 His Honour decided that Mr Marchesano had not satisfied the evidential burden and, accordingly, duress should not be left to the jury (ts 1283).

Appeal against conviction: the grounds of appeal

52 Ground 1 alleges that there was a miscarriage of justice occasioned by the trial judge's ruling that Mr Marchesano's counsel was permitted to adduce evidence of:

(a) the appellant's record of convictions for violence, including his conviction for robbery, and his record of convictions for possession of firearms without a licence; and

(b) violence and threats of violence by the appellant.

53 Ground 2 alleges that his Honour made a wrong decision on a question of law in declining to order, pursuant to s 133(4)(a) of the Criminal Procedure Act 2004 (WA), that the appellant be tried separately from Mr Marchesano and that the jury be discharged pursuant to s 116 of the Criminal Procedure Act.

54 Ground 3 alleges, alternatively to ground 2, that there was a miscarriage of justice occasioned by the appellant being tried jointly with Mr Marchesano.

55 Ground 4 alleges that there was a miscarriage of justice occasioned by his Honour's refusal to give a corroboration warning in relation to Ms Smillie.

56 On 11 June 2016, Mazza JA granted leave to appeal on grounds 2 and 3 and referred the application for leave to appeal on grounds 1 and 4 to the hearing of the appeal.

Appeal against conviction: ground 1: the relevant course of the trial

57 During the afternoon of 20 October 2015, after the evidence-in-chief of Ms Smillie had been completed, but before cross-examination had commenced, counsel for Mr Marchesano sought leave to adduce evidence of the appellant's record of convictions for violence and possession of unlicensed firearms of which Mr Marchesano had no knowledge as at 26 October 2013. His Honour ruled that evidence of the appellant's record of convictions could not be adduced.

58 After the completion of Ms Smillie's evidence, counsel for Mr Marchesano made another application for leave to adduce evidence of the appellant's record of convictions for violence and possession of unlicensed firearms of which Mr Marchesano had no knowledge as at 26 October 2013. Counsel for Mr Marchesano also applied for leave to adduce evidence from State witnesses of violent conduct engaged in by the appellant of which Mr Marchesano had no knowledge as at 26 October 2013.

59 The appellant's prior convictions were, relevantly, as follows:

(a) A conviction in the Midland Magistrates Court on 12 February 2001 of assaulting a public officer, for which the appellant received a fine of $400.

(b) A conviction in the Broome Magistrates Court on 20 October 2003 of assaulting a public officer, for which the appellant received a sentence of 6 months' imprisonment suspended for 2 years.

(c) A conviction in the Broome Magistrates Court on 20 October 2003 of common assault, for which the appellant received a fine of $500.

(d) A conviction in the Perth Magistrates Court on 29 May 2006 of unlawful wounding, for which the appellant received a sentence of 12 months' imprisonment.

(e) A conviction in the Perth Magistrates Court on 29 May 2006 of common assault, for which the appellant received a sentence of 6 months and 1 day imprisonment.

(f) Two convictions in the South Hedland Magistrates Court on 23 July 2009 of possession of an unlicensed firearm, for which the appellant received fines totalling $350.

(g) A conviction in the South Hedland Magistrates Court on 19 October 2009 of aggravated assault occasioning bodily harm, for which the appellant received a sentence of 16 months' imprisonment.

(h) A conviction in the District Court on 14 January 2010 of robbery, for which the appellant received a sentence of 10 months' imprisonment.

60 During his cross-examination of Ms Smillie, counsel for Mr Marchesano had adduced evidence that the appellant had threatened to harm her if she told police what had happened to the deceased. In addition, counsel for Mr Marchesano wanted to adduce the following evidence from other State witnesses:

(a) From Mr Gillmore, who had admitted being an accessory after the fact to murder, evidence of an incident in April 2013 where Mr Gillmore saw the appellant threaten violence to a woman, evidence of an assault by the appellant on Mr Gillmore several months before the deceased's death and evidence of a threat made by the appellant to Mr Gillmore in prison in May 2014, being the appellant's alleged statement:

You've taken me away from my family, so I'm going to take your family away from you.

(b) From Cameron Pryce, evidence of the appellant's intimidating and threatening behaviour that he had witnessed.

(c) From Barry Harding, evidence of the appellant being aggressive while drunk, evidence of the appellant's intimidating behaviour, including when the appellant requested Mr Harding to arrange to borrow Paul Screaigh's Hilux utility vehicle in November 2013, and evidence of an assault by the appellant on Brad Robinson in about 2012.

(d) From Paul Screaigh, evidence of the appellant's behaviour when he lived with Mr Screaigh, including an assault by the appellant on Mr Screaigh's then partner.

61 Further, counsel for Mr Marchesano informed his Honour that if the appellant was called as a witness, counsel wanted to cross-examine the appellant on information in the Department of Corrective Services' file, including:

(a) The appellant's alleged admission to prison staff that he had a propensity to lose control of his behaviour and become aggressive when he consumed alcohol to excess.

(b) The appellant's alleged admission to prison staff that the majority of his offences had been committed when he was affected by alcohol.

(c) The appellant's alleged comment to a prison officer, after the appellant had assaulted Mr Gillmore, to the effect that the appellant should have pummelled him and stomped on his head to make it worthwhile.

(d) The appellant's alleged admission to prison staff that on 1 May 2015 he struck a fellow prisoner to the left side of the face.

(e) The appellant having allegedly made this threat on 7 January 2015 to a fellow prisoner:

Appeal against conviction: ground 1: the trial judge's ruling

62 The trial judge summarised, in the course of giving his reasons for decision on counsel for Mr Marchesano's applications, the State's case, the appellant's case and Mr Marchesano's case as opened at the trial.

63 His Honour also set out the following passages from counsel for the appellant's cross-examination of Ms Smillie:

I suggest to you that what Daniel Marchesano said in your presence was this:

Benny [that is, the appellant], I've fucked up. I need your help.

?---No. I was never there when anything like that was said because [the appellant] drove to Daniel's house.

...

[The appellant] asked Daniel [Marchesano] whether [the deceased] was dead, didn't he?---No.

And he said he was dead?---No.

And he also said, didn't he, that he; that is, Daniel Marchesano, had cut his legs off because he was too heavy for him to move himself?---No.

And I suggest to you that [the appellant] said, 'What the fuck? Are you serious? Are you looping'?---No.

And I suggest to you that when you got back to Daniel Marchesano's house, what [the appellant] did at the request of Daniel was to help get rid of the body, get rid of bits and pieces, engaging [Mr Gillmore] and the like?---No, that is all incorrect.

And I suggest to you that he simply was not there between 10 o'clock in the morning as you've told this court and 4 o'clock in the afternoon?---Yes, he was there (ts 434 - 435).

64 The trial judge observed that '[t]he jury now knows that the case for [the appellant] is that Mr Marchesano has made admissions to him which are consistent with Mr Marchesano having murdered [the deceased]' (ts 481). His Honour said that '[i]n those circumstances, it is relevant to Mr Marchesano's defence that there is evidence that [the appellant] has a propensity for violence and a propensity to possess firearms' (ts 481). His Honour continued:

The fact that [the appellant] does not say he was present when Mr Marchesano committed the murder and the fact that there is not yet any evidence to support [the appellant's] case does not change the position. The issue has been raised by cross-examination of Ms Smillie by counsel for [the appellant] and it [follows] that Mr Marchesano is entitled to respond to the issue by adducing evidence from which the jury might conclude that [the appellant] is more likely to have committed the offence by reason of his disposition for violence and to possess firearms (ts 482).

65 His Honour ruled that, in the defence of the State's case against him, Mr Marchesano could adduce evidence of the appellant's record of convictions for violence, including his conviction for robbery, and his record of convictions for possession of firearms without a licence.

66 The trial judge also ruled that, in the defence of the State's case against him, Mr Marchesano could adduce evidence of violence and threats of violence by the appellant.

Appeal against conviction: ground 1: the appellant's submissions

67 Counsel for the appellant submitted that the trial judge's ruling that counsel for Mr Marchesano should be permitted to adduce evidence of:

(a) the appellant's record of convictions for violence, including his conviction for robbery, and his record of convictions for possession of firearms without a licence; and

(b) violence and threats of violence by the appellant,

(a) was not admissible in the State's case against the appellant;

(c) did not become admissible in Mr Marchesano's case by counsel for the appellant's cross-examination of Ms Smillie.

69 Counsel argued, in the alternative, that even if the evidence in question was 'potentially relevant to the defence of Marchesano', once his Honour ruled that Mr Marchesano had not satisfied the evidential burden in relation to the defence of duress, Mr Marchesano had, by the manner in which he had conducted his case, no defence to the charge of murder and, consequently, 'the concerted attack on the appellant's credibility and his defence did not advance [Mr Marchesano's] case in relation to guilt or innocence'.

70 Counsel for the appellant emphasised that the prejudice to the appellant of the evidence in question was exacerbated in counsel for Mr Marchesano's closing address. According to counsel for the appellant, counsel for Mr Marchesano used his closing address as an opportunity 'to prosecute the appellant for murder and highlight [the evidence in question] in circumstances where his client had no defence'.

Appeal against conviction: ground 1: its merits

71 The evidence about which the appellant complains falls into four broad categories.

72 The first category comprises Mr Marchesano's statements in his electronically recorded interviews with police to the effect that he was involved in the deceased's murder by reason of threats of violence made by the appellant to him, in respect of him and his mother and sister, both before and after the killing.

73 The second category comprises Mr Marchesano's description in his electronically recorded interviews with police of an alleged incident unrelated to the deceased's murder which involved the appellant directly threatening Mr Marchesano. Mr Marchesano had intervened during an argument between the appellant and his partner, Ms Kent. The appellant threatened to kill Mr Marchesano by caving in his skull if he ever intervened again.

74 The third category comprises acts of violence which the appellant allegedly committed against other people.

75 The fourth category comprises the appellant's previous convictions for offences of violence and his previous convictions for possession of unlicensed firearms.

76 As to the first category of evidence, the prosecutor tendered Mr Marchesano's electronically recorded interviews with police as part of the State's case against him.

77 The other categories of evidence about which the appellant complains were not adduced by the prosecutor.

78 In Russell v The State of Western Australia [2011] WASCA 246; (2011) 214 A Crim R 326, I examined the case law which has established that one of two jointly charged accused may adduce relevant evidence to disprove his or her guilt even though, as against the other accused, the evidence merely tends to prove that the other accused had a propensity to commit the offence with which the two accused have been jointly charged [308] - [334]. It is convenient to reproduce parts of that review.

79 It is a fundamental principle of the criminal law that an accused must be completely free to meet the charge against him or her by all legitimate and relevant means. See R v Lowery (No 3) [1972] VicRp 109; [1972] VR 939, 947 (Winneke CJ, Little & Barber JJ).

80 In Lowery (No 3), it was held that one of two jointly charged accused may adduce relevant evidence to disprove his or her guilt even though, as against the other accused, the evidence merely tends to prove that the other accused has a disposition or propensity, or is the sort of person likely, to commit the offence with which the two accused have been jointly charged. Winneke CJ, Little and Barber JJ said:

It is, however, established by the highest authorities that in criminal cases the Crown is precluded from leading evidence that does no more than show that the accused has a disposition or propensity or is the sort of person likely to commit the crime charged ...

...

It is, we think, one thing to say that such evidence is excluded when tendered by the Crown in proof of guilt, but quite another to say that it is excluded when tendered by an accused in disproof of his own guilt. We see no reason of policy or fairness which justifies or requires the exclusion of evidence relevant to prove the innocence of an accused person (944 - 945).

On appeal, that passage was cited with approval in the advice of the Privy Council. See Lowery v The Queen [1974] AC 85, 102.

81 In R v Webb (1992) 59 SASR 563, King CJ (Cox & Matheson JJ agreeing) considered the principles to be applied where one accused applies to adduce evidence against another co-accused at a joint trial, and the prosecution does not propose or is not entitled to lead that evidence. His Honour said:

It is a principle of the criminal law that evidence of an accused person's 'propensity or disposition to commit crime, or crime of a particular kind', is not admissible in proof of a charge against him: Markby v The Queen [1978] HCA 29; (1978) 140 CLR 108, per Gibbs ACJ (at 116). That is not because propensity and disposition are necessarily irrelevant, but because of the policy of the law to protect an accused person against the sort of prejudice which might lead to an unjust conviction. There is no principle of law which precludes the admission of evidence of propensity or disposition of an accused person where that evidence is tendered by a co-accused in disproof of the charge against that co-accused: Lowery v The Queen [1974] AC 85 esp at 90. It is of course necessary that evidence of that kind tendered by a co-accused be relevant. It is only relevant if it tends to show that the accused whose propensity or disposition is sought to be proved, committed the crime to the exclusion of the co-accused tendering the evidence. As to relevance the English Court of Appeal in R v Bracewell (1978) 68 Cr App R 44 at 50 said:

'But where the evidence is tendered by a co-accused, the test of relevance must be applied, and applied strictly, for if irrelevant, and therefore inadmissible evidence is admitted, the other accused is likely to be seriously prejudiced, and grave injustice may result. The judge has, of course, an overriding duty to prevent injustice, so far as the rules of evidence permit. Moreover, in doubtful cases there is considerable scope for differences of judicial opinion as to whether the evidence does or does not make it more likely that one of the co-accused committed the act in question.'

The Court of Appeal regarded as 'a further point of some importance' that the evidence was controversial, unlike that in Lowery's case (supra) which was described as 'incontrovertible', and the court referred to the 'obvious objections to putting a co-accused in a position of having to fight two quite different battles at the same time'. The last-mentioned point was taken up by the Victorian Court of Criminal Appeal in R v Gibb [1983] VicRp 78; [1983] 2 VR 155 at 171 in the following passage:

'A trial judge always has to ensure that the trial is fairly and properly conducted and this duty will sometimes involve ensuring that the freedom granted to accused persons is not abused. It is as well also to heed the warning expressed in Cross on Evidence (2nd Aust ed, 1978), p 341, par 14.1, as follows:

"The reception of evidence of disposition as a fact relevant to the issue is attended by several dangers. When it is proved by reference to a person's conduct on occasions other than that into which the court is inquiring, numerous collateral issues are liable to be raised. The opposite party can sometimes legitimately complain that he has been taken by surprise by the adduction of evidence which he might have been able to counter, had he but known it was going to be given."'

There is moreover a serious danger of a jury being diverted from the real issues in the case by a series of contests as to whether an accused person has committed acts, said to demonstrate propensity or disposition, in the past perhaps over a long period of time. Such considerations require that evidence of past conduct be admitted in order to demonstrate propensity and disposition only where the relevance of that evidence is substantial and can be clearly seen (573 - 574).

82 In Winning v The Queen [2002] WASCA 44, the appellant and two other persons were tried together, as principal offenders, on a joint charge of wilful murder. All were found guilty. The appellant appealed, relevantly, on the ground that the trial judge erred in law in refusing to permit him to adduce evidence of the prior criminal record of a co-accused, Avis. The Court of Criminal Appeal granted leave to appeal, allowed the appeal, quashed the appellant's conviction and ordered a new trial.

83 Olsson AUJ (Malcolm CJ & Steytler J agreeing) outlined the manner in which the trial had proceeded:

In the instant case it is true that Avis did not give or call positive evidence promoting his good character, or attacking that of the appellant. However, what he had said in his record of interview (which sought to portray himself as a person of good character; and the appellant as the cold-blooded killer of Lister and the primary actor in the whole sequence of events which took place) was before the jury at great length, albeit that the learned trial Judge very properly told the jury that this was not evidence against the appellant and should be ignored apropos him. Moreover ... Avis' case at trial necessarily involved a significant attack on the character and credit of the appellant. The supposed good character and personality of Avis were put to the jury by his counsel in some detail, whilst that of the appellant was disparaged to a significant degree. That was a consistent theme in the final address on behalf of Avis and one as to which the appellant was constrained in responding, by his inability to present evidence of the relevantly bad character of Avis and the apparent predisposition of the latter to acts of violence, as demonstrated by his antecedent record (cf Knight v Jones, Ex parte Jones [1981] Qd R 98 at 103 ('Knight') and Bracewell v The Queen (1979) 68 Cr App Rep 44 at 52) [39].

84 The court in Winning held that the evidence sought to be adduced by the appellant was clearly relevant and admissible. The issue was as to which of two accused had stabbed the deceased and as to the respective roles of each of the accused in the events preceding and leading up to his death [40]. Olsson AUJ explained:

In a situation in which the appellant was being attacked by counsel for Avis and asserted to have been the primary offender, whilst Avis was being put forward as a loving, caring person unlikely to have committed or participated in the act of homicide, it was very relevant for the appellant to be able to demonstrate that Avis' record patently indicated a predisposition towards criminal violence and that, when it came to an assessment of relative credit, he had a record of dishonesty [40].

85 The court in Winning also held that the basis on which evidence of the kind in question may be adduced by one accused against another (that is, that the evidence be logically probative) 'necessarily negates the existence of a general discretion to exclude evidence on the basis that its potential prejudicial effect in relation to an accused person outweighs its probative value' [41]. His Honour added in relation to this point:

In the event that an accused seeks to lead propensity evidence against a co-accused which, of its nature, is such that no directions of a trial Judge would be adequate to ensure that a jury could be expected to perform 'the remarkable mental feats required of them', the appropriate course is to direct a separate trial of the co-accused, however inconvenient that may be (R v Gibb & Anor [1983] VicRp 78; [1983] 2 VR 155 at 165 - 166; see also R v Demirok [1976] VicRp 19; [1976] VR 244) [42].

Compare R v Darrington [1980] VicRp 36; [1980] VR 353, 385 (Jenkinson J, Young CJ agreeing), where it was decided that a trial judge retains a discretion to exclude evidence otherwise admissible which is tendered by one of several accused in disproof of his guilt of a crime charged against them jointly. See also Gibb (171); R v Katipa [1986] 2 NZLR 121, 125 (McMullin & Somers JJ & Sir Thaddeus McCarthy); Carranceja v The Queen (1989) 42 A Crim R 402, 407 (Murphy, Marks & Gobbo JJ); R v N (No 3) [2010] SASC 7 [14] (Kelly J).

86 In Winning, the Crown made application for special leave to appeal to the High Court. Special leave was refused. The High Court (Gummow & Kirby JJ), in refusing special leave, said that, as they read the reasons delivered by Olsson AUJ, 'those reasons were confined to the exercise of the discretion in this trial and were not apt to propound some general proposition'. See R v Winning [2002] HCA Trans 276.

87 In R v Randall [2003] UKHL 69; [2004] 1 WLR 56, R and G were charged with murder, as principal offenders, and tried jointly. The prosecution alleged that, either independently or together, they had attacked and inflicted fatal injuries on the deceased. Each denied the charge and gave evidence against the other. In particular, each relied on the criminal record of the other to show propensity to violence. R had relatively minor convictions unrelated to violence. By contrast, G had a number of convictions for burglary and had been involved in violence. The trial judge directed the jury that G's bad character was relevant only to his credibility and was not relevant to the likelihood of his having attacked the deceased. The jury convicted R of manslaughter and acquitted G. In the Court of Appeal, it was held that the trial judge had misdirected the jury. R's appeal was allowed, his conviction was quashed and a retrial ordered. The prosecuting authority appealed this decision

88 In the House of Lords, Lord Steyn (Lord Bingham of Cornhill, Lord Hobhouse of Woodborough, Lord Scott of Foscote & Lord Rodger of Earlsferry agreeing) held that a co-accused was entitled to disprove his or her own guilt and might do so by tendering evidence of propensity to show that his or her version of the facts was more probable than that put forward by a co-accused. Since R and G had each asserted the guilt of the other, evidence of G's propensity to threaten and use violence was relevant to the issue whether R was the more likely to have inflicted serious violence on the deceased. Accordingly, the evidence was relevant not only to G's credibility but also the likelihood of his having attacked the deceased.

89 Lord Steyn observed that the reasons of the Privy Council in Lowery v The Queen raised difficulties in two respects, as follows:

The first is in regard to the observation, at p 101E, that the evidence of the expert was 'not related to ... criminal tendencies'. It is true that the evidence was tied in directly to King defending himself against the Crown's case against him. On the other hand the evidence demonstrated Lowery's potential aggressiveness. It is therefore difficult to accept the statement that the evidence did not relate to criminal tendencies. Secondly, the judgment placed emphasis on the fact that Lowery put his character in issue at pp 101 - 102. But there must be cases in which the propensity of one accused may be relied on by the other, irrespective of whether he has put his character in issue: Blackstone's Criminal Practice (2003), p 2172, para F12.20. Subject to these minor points, Lowery is high authority for the proposition that evidence of a co-accused's propensity may be relevant [29].

His Lordship concluded that Lowery v The Queen was precedent for the view that, in the circumstances of Randall, the propensity to violence of a co-accused may be relevant to the issues between the Crown and the accused tendering such evidence [29].

90 Towards the end of his reasons, Lord Steyn expressed the view that 'where evidence of propensity of a co-accused is relevant to a fact in issue between the Crown and the other accused it is not necessary for a trial judge to direct the jury to ignore that evidence in considering the case against the co-accused' [35]. His Lordship said that justice does not require that such a direction be given and, moreover, such a direction would 'needlessly perplex juries' [35].

91 In Cross on Evidence (10th Aust ed, 2015) [19155] fn 245, this statement appears:

There has been a dispute about whether, where a co-accused tenders evidence of another's previous misconduct, it is admissible not only in relation to the Crown case against the first, but also in relation to the Crown case against the second: R v Price [2005] Crim LR 304 (CA) and R v Robinson [2006] 1 Cr App R 480 (CA) favour the view that it is, R v Mertens [2005] Crim LR 301 (CA) and R v Murrell [2005] Crim LR 869 (CA) that it is not. See also R v Roughan [2007] QCA 443; (2007) 179 A Crim R 389; R v Beckett [2011] 1 Qd R 259.

92 In each of R v Price [2004] EWCA Crim 1359; [2005] Crim LR 304, R v Robinson [2005] EWCA Crim 3233; [2006] 1 Cr App R 32; R v Mertens [2004] EWCA Crim 2252; [2005] Crim LR 301 and R v Murrell [2005] EWCA Crim 382; [2005] Crim LR 869, the Court of Appeal of England and Wales referred to the obiter dictum of Lord Steyn in Randall at [35]. See [90] above.

93 In each of Price, Robinson and Mertens the co-accused were jointly charged with murder as principal offenders. There was a joint trial. The accused ran cut-throat defences.

94 Similarly, Murrell was concerned with three accused who were jointly charged with, relevantly, a conspiracy involving the importation of an illicit drug. They were tried jointly. It was the prosecution's case that all of the accused were knowingly involved in the conspiracy. However, each accused contended that he had no knowledge of the drugs but could not exclude the possibility that one of the other accused was involved. The appellant and one of his co-accused were convicted. The other co-accused was acquitted. The trial judge permitted counsel for each of the appellant's co-accused to adduce evidence to the effect that the appellant had a prior conviction for importing an illicit drug, for which he had been sentenced to a term of imprisonment, and evidence to the effect that, shortly after the appellant had been arrested on the conspiracy charge, police had searched his house and had found a firearm and ammunition, which had been hidden in a mobile telephone container under the floorboards of a bedroom in the house. The appellant appealed against his conviction, relevantly, on the ground that the evidence of the previous conviction and the finding of the gun and ammunition should not have been admitted. The Court of Appeal dismissed the appeal. It held that the evidence in question was relevant, and the trial judge rightly had admitted it in relation to each co-accused, even though the evidence would not have been admissible against the appellant if he had been tried alone. Lord Woolf of Barnes LCJ (who delivered the judgment of the court) referred to the obiter dictum of Lord Steyn in Randall at [35] and said:

We recognise the difficulty that if what Lord Steyn said in Randall is applied too literally, the person against whom evidence is admitted, which would not normally be admitted, would be prejudiced. The trial judge always has to do his best to ensure that justice is done to each defendant before him. This case provides a good example of how justice can be done. As we understand what happened in the trial below, counsel on behalf of the Crown was careful not to rely on the previous conviction of the appellant. Nor did he rely on the finding of the gun. He was quite right not to do so.

When the Recorder came to sum up, no doubt taking his lead from the way the case had been presented on behalf of the Crown, he made it clear that the evidence of the previous conviction and the finding of the gun were relevant to the cases against Flook and Ellis, but not part of the case against the appellant. Without causing perplexity to the jury, the judge can indicate the Crown's case against each. It is perfectly possible for a judge to describe the Crown's case against one accused without referring to the evidence which is admissible in support of the case of co-accused, and then, as this Recorder did, make clear the relevance of the evidence so far as the co-accused are concerned. This may help to minimise the prejudice that may be caused in any joint trial because evidence is admissible as against one accused which is not admissible against another.

It follows from what we have said that we consider that the summing-up of the Recorder, bearing in mind our conclusion as to the relevance of the previous conviction and the finding of the gun and ammunition, cannot be faulted [28] - [30].

95 In R v Roughan [2007] QCA 443; (2007) 179 A Crim R 389, Keane JA referred to the decisions in Lowery (102), Knight v Jones; Ex parte Jones [1981] Qd R 98, 101 - 104, Winning [34] - [43] and Randall [20] - [36], and said that these authorities support the general proposition that evidence showing the disposition or propensity of a co-accused to act in a certain way may be tendered by another co-accused to disprove his or her guilt [68] - [69]. His Honour added that where one or other of the co-accused must be the offender, evidence which tends rationally to show that the character and personality of one co-accused is such that he or she, rather than the other, is the guilty person will be admissible [69]. His Honour went on to say, however, that:

In a case such as the present where the evidence relied upon to show a co-accused's propensity is evidence of similar facts, those facts must exhibit the kind of 'striking similarity' which makes it probable that the co-accused committed the crime with which he and the co-accused are charged [72].

96 In Roughan, McMurdo J agreed with Keane JA that evidence showing the disposition or propensity of a co-accused to act in a certain way may be tendered by another co-accused to disprove his or her guilt, but McMurdo J did not agree with Keane JA that it was a condition of admissibility that the evidence in question must reveal a 'striking similarity' with the crime charged against the joint accused [102].

97 The other justice in Roughan, Muir JA, expressed general agreement with the reasons of Keane JA and McMurdo J. His Honour found it unnecessary, however, to express a view on the point of difference I have mentioned [88].

98 The decision of the Court of Appeal of Queensland in Roughan was appealed to the High Court. See Jones v The Queen [2009] HCA 17; (2009) 83 ALJR 671. The salient facts of the case were these. The appellant and another man were charged with murder. The Crown case was that either or both of the accused murdered the deceased, or that one of them murdered him and the other enabled or aided the other in the attack with the intent of causing death or grievous bodily harm. Both accused were convicted after a joint trial. The appellant argued that the trial judge made an error of law in preventing his counsel from fully adducing evidence that the co-accused had attempted to murder a friend (McKenna) on another occasion. The High Court dismissed the appeal.

99 In Jones, French CJ, Heydon, Kiefel and Bell JJ (Hayne J agreeing) held that no miscarriage of justice was occasioned as a result of the trial judge's ruling in relation to the propensity evidence of the assault on McKenna. The evidence the appellant wanted to adduce about this assault was hearsay and inadmissible. His counsel did not seek to adduce admissible (direct) evidence of the relevant circumstances [7], [22] - [23]. Their Honours found it unnecessary to resolve the point of difference between Keane JA and McMurdo J in the Court of Appeal [20] - [22]. Similarly, their Honours said in relation to Randall:

In R v Randall it was said that there must be cases in which the propensity of one accused may be relied on by the other irrespective of whether he has put his character in issue (R v Randall [2003] UKHL 69; [2004] 1 WLR 56 at [29] per Lord Steyn). As the admissible evidence of Roughan's propensity which the appellant claims to have been prevented from adducing is unknown, this appeal does not provide the occasion to consider the principles discussed in Randall [22]. (some references omitted)

100 Hayne J, in separate reasons for decision in Jones, referred to the judgment of the Privy Council in Lowery and the judgment of the House of Lords in Randall. His Honour then said:

Whether the applicable principle is expressed as it was in Lowery or as it was in Randall, the adducing of evidence by one co-accused about the propensities of another co-accused presents real difficulties for the conduct of a trial, especially a joint trial. There may be a question about whether the admissibility of evidence of this kind depends upon the accused against whom the evidence is led having first put his or her character in issue.

There are also other more deep-seated questions that may require examination. In particular, if it is suggested that where each of two co-accused attributes guilt of the offence to the other, one may tender evidence about the criminal propensities of the other, there is no little risk of the trial being diverted into the byways of collateral issues about the nature, extent and probative significance of those propensities. And questions like whether or how a rule of the kind described in Pfennig v The Queen ([1995] HCA 7; [1995] HCA 7; (1995) 182 CLR 461) could, or should, be applied in these circumstances, or whether a rule of that kind, if applied, would address the fears that the tribunal of fact would be diverted from focusing upon the central issues that are being tried in the matter, are questions that did not arise and were not examined in argument in this matter. Nor was there any consideration of whether or when, if evidence of the criminal propensities of one co-accused is to be admitted, the trial should nonetheless continue as a joint trial. These are questions that are to be reserved for another day [37].

101 In R v Beckett [2009] QCA 196; [2011] 1 Qd R 259, Fraser JA (McMurdo P & Cullinane J agreeing) noted the difference in approach between Keane JA and McMurdo J in Roughan, and said it was neither necessary nor appropriate to resolve the issue in the case before him. His Honour added that there was no dissent in the Court of Appeal or in the High Court from the general proposition that evidence which tends rationally to show that the character and personality of one co-accused is such that he or she, rather than the other co-accused, is the guilty person, will be admissible [33].

102 In the present case, the trial judge's ruling that Mr Marchesano's counsel should be permitted to adduce the evidence about which the appellant complains did not occasion a miscarriage of justice at the trial. My reasons are as follows.

103 First, before his Honour ruled that the defence of duress should not be left to the jury, Mr Marchesano's case was, relevantly, that:

(a) the appellant had shot and killed the deceased;

(b) Mr Marchesano had accompanied and guided the deceased to Scene 1, where the appellant was waiting with a loaded rifle, because Mr Marchesano was acting under duress in that the appellant had threatened that, if Mr Marchesano did not assist him, the appellant would kill Mr Marchesano and his mother and sister; and

(c) in any event, when Mr Marchesano accompanied and guided the deceased to Scene 1, Mr Marchesano did not believe that the appellant would actually murder the deceased.

104 After his Honour ruled that the defence of duress should not be left to the jury, Mr Marchesano's case was, relevantly, that:

(a) the appellant had shot and killed the deceased; and

(b) when Mr Marchesano accompanied and guided the deceased to Scene 1, Mr Marchesano did not believe that the appellant would actually murder the deceased.

105 The appellant's defence was, relevantly, that he did not shoot the deceased; he did not obtain from his parents' home the rifle used to kill the deceased; he was not at Mr Marchesano's house on the afternoon of 26 October 2013; he was not present when the deceased was killed; there was some compelling evidence which suggested the rifle used to shoot the deceased came from Mr Marchesano's house; the appellant did not have a motive to kill the deceased; by contrast, Mr Marchesano and Ms Smillie 'in their drug-fuelled paranoid state in the lead up to 26 October 2013 [were] actually much more likely candidates for having a motive to kill [the deceased] irrespective of whether or not their belief was rational' (ts 1382); on one view of the evidence Ms Smillie 'may well have been complicit in the actual killing of [the deceased], having forged a drug-fuelled, paranoid relationship with [Mr Marchesano]' (ts 1383); after the killing, Mr Marchesano directed the appellant to the place where the deceased had been shot; Ms Smillie may have been present when the deceased was killed; the appellant had been recruited by Mr Marchesano to become involved in the 'clean-up'; although the appellant was 'certainly guilty of being an accessory after the fact of murder', he was 'not guilty of murder' and he did not 'pull that trigger' (ts 1426). See the closing address of the appellant's counsel.

106 The evidence about which the appellant complains tended rationally to show that the appellant's character and personality was such that he, rather than Mr Marchesano, had shot and killed the deceased. In the circumstances, it was not open to his Honour to exclude the evidence in question on the basis that its reception was unduly prejudicial to the appellant. See Winning [41]; Russell [83], [318].

107 Secondly, the trial judge's decision that Mr Marchesano had not satisfied the evidential burden in relation to the defence of duress and that, accordingly, duress should not be left to the jury, did not preclude Mr Marchesano's counsel from endeavouring to persuade the jury, on the basis of the evidence given at the trial (including the evidence about which the appellant complains), that there was, at least, a reasonable doubt as to whether Mr Marchesano had shot and killed the deceased. On a fair reading of the closing address of the appellant's counsel, considered as a whole, the appellant's case included the implicit allegation that Mr Marchesano may have shot and killed the deceased.

108 Thirdly, after submitting in his closing address that the jury should find that it was the appellant who had shot and killed the deceased, Mr Marchesano's counsel sought to rely on passages in Mr Marchesano's electronically recorded interviews with police to the effect that, when Mr Marchesano accompanied and guided the deceased to Scene 1, Mr Marchesano did not believe that the appellant would actually murder the deceased (ts 1370 - 1374). If the jury had been prepared to give Mr Marchesano the benefit of any doubt on that issue, the jury could have convicted him of manslaughter only. That was a legitimate and relevant line of defence for Mr Marchesano's counsel to pursue.

109 Fourthly, his Honour gave the jury these directions in his summing up:

[Y]ou've heard the evidence of Detective Howell as to [the appellant's] convictions and you've heard evidence from the witness, Ms Smillie, [that] [the appellant] threatened to harm her if she told police what happened to [the deceased].

You've heard evidence from Christian Gillmore as to [the appellant] being violent. He'd been seen being violent. You also heard evidence from Cameron Pryce of [the appellant] being intimidating. From Barry Harding of [the appellant] being aggressive when drunk and of an assault of Mr Robinson. And from Paul Screaigh you heard evidence of physical confrontation with his partner and the challenge to Mr Screaigh to fight.

These are matters that [Mr Marchesano's counsel] has submitted to you are relevant in the State's case against Mr Marchesano. [Mr Marchesano's counsel] has submitted to you that Mr Marchesano is not likely to be the person who killed [the deceased]. Those are matters which you are entitled to consider when considering whether the State has proved its case against Mr Marchesano.

But those are not matters that are relevant to the State's case against [the appellant]. None of them are. Put them out of your mind when you're considering the State's case against [the appellant]. When considering the State's case against [the appellant] you consider only the evidence that is relevant to ... that case (ts 1458).

110 Fifthly, the appellant does not impugn (and he could not reasonably have impugned) the trial judge's directions to the jury in relation to the evidence about which the appellant complains. His Honour's directions as to the basis on which the evidence was relevant and admissible were appropriate. A criminal trial on indictment proceeds on the assumption that, as a general rule, the jurors are true to their oath or affirmation and they understand and obey the trial judge's directions. See Gilbert v The Queen [2000] HCA 15; (2000) 201 CLR 414 [13] (Gleeson CJ & Gummow J), [31] (McHugh J); Dupas v The Queen [2010] HCA 20; (2010) 241 CLR 237 [29] (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel & Bell JJ).

111 Sixthly, ground 1 alleges that his Honour's ruling that Mr Marchesano's counsel was permitted to adduce the evidence about which the appellant complains occasioned a miscarriage of justice. Neither ground 1 nor any other ground alleges that his Honour made a wrong decision on a question of law in permitting Mr Marchesano's counsel to adduce the evidence. The evidence was properly admitted as part of Mr Marchesano's defence case. In the circumstances, the appellant cannot demonstrate that he suffered a miscarriage of justice unless he establishes that the decision not to grant him a separate trial was wrong.

Appeal against conviction: grounds 2 and 3: the appellant's applications for a separate trial

113 By an application dated 29 April 2015, about six months before the commencement of the trial, the appellant sought an order under s 133 of the Criminal Procedure Act that he be tried separately from Mr Marchesano. On 22 May 2015, Hall J heard and dismissed the application.

114 On 19 October 2015, being the date of commencement of the trial, the trial judge heard another application by the appellant under s 133 of the Criminal Procedure Act for an order that he be tried separately from Mr Marchesano. His Honour dismissed the application. His Honour said, relevantly:

While I'm not making a concluded ruling as to the admissibility of the evidence of the violent conduct of [the appellant] and threatening conduct by him, at the very least, evidence of violence or threatening conduct of which Mr Marchesano was aware will be admissible on the possible defence of duress. So there will be evidence before the jury of those matters.

In my view, on the present state of the case as I understand it, a jury would be able to separate out that evidence and consider it solely, in the State's case, concerning Mr Marchesano and put it aside when considering the State's case against [the appellant]. I do not regard that evidence at this stage as being so voluminous or so complex as to preclude the jury being able to take that course (ts 148).

115 However, when he dismissed the application, his Honour directed that counsel for Mr Marchesano cross-examine witnesses before counsel for the appellant. After his Honour dismissed the application and made the direction, the jury was empanelled.

116 On 20 October 2015, counsel for the appellant renewed his application for a separate trial, coupled with an application to discharge the jury. His Honour dismissed both applications (ts 211).

117 On 26 - 27 October 2015, counsel for the appellant again renewed his application for a separate trial. His Honour dismissed the application. His Honour's reasons were, relevantly, as follows:

It is now necessary for me to review my earlier ruling that the accused should be tried together. The evidence of [the appellant's] convictions is relevant in Mr Marchesano's defence of the case against him, as is the other evidence of violence to which I have referred.

The State does not contend that all of that evidence is admissible in the State's case against [the appellant]. The only evidence that Mr Marchesano wishes to lead that the State contends is admissible in the State's case against [the appellant] is, first, evidence from the witness Tessa Smillie that [the appellant] threatened to harm her if she told police what had happened to [the deceased].

Secondly, evidence from Mr Gillmore of a threat by [the appellant] against Mr Gillmore in prison in May 2014, to which I have referred; and thirdly, evidence from the witness Barry Harding concerning a threat when [the appellant] requested Mr Harding arrange the borrowing of Paul Screaigh's Hilux ute in November 2013.

The State contends that the first and second pieces of evidence demonstrated consciousness of guilt. The State contends that the third piece of evidence shows that [the appellant] was involved in the hiding of evidence that [the deceased] had been killed.

It follows that the bulk of the evidence that Mr Marchesano intends to lead in the defence of the State's case against him is not admissible in the State's case against [the appellant].

...

I need to bear in mind not only the evidence which Mr Marchesano wishes to adduce in the defence of the State's case against him, but also that in its case against Mr Marchesano, the State will adduce evidence that in an interview by police officers, Mr Marchesano admitted involvement in the killing of [the deceased] and said that he was involved because [the appellant] threatened to kill Mr Marchesano and members of his family if he did not participate in the killing of [the deceased]. That evidence is admissible against Mr Marchesano, but not against [the appellant].

It is my view that the members of the jury will be able to understand and apply a direction that evidence of what Mr Marchesano said in his interview by police officers is admissible in the State's case against Mr Marchesano, but is not evidence against [the appellant].

I also consider that the members of the jury will be able to understand and apply a direction that the evidence of [the appellant's] propensity for violence and threats and to possess firearms is to be considered by them in Mr Marchesano's defence of the State's case against him, as evidence that it is less likely that Mr Marchesano did the act which caused [the deceased's] death, but that the members of the jury are not to consider that evidence in the State's case against [the appellant].

I have had regard to the combination of the evidence of what Mr Marchesano said in his evidence and also of the evidence of violence and threats and possession of firearms. I am satisfied that the limitations on the relevance of that evidence, to which I have referred, do not require the members of the jury to perform a mental feat that would be beyond them.

I consider that the legal principles are capable of being understood and applied by the members of the jury. I conclude that notwithstanding my ruling that in the defence of the State's case against him, Mr Marchesano can adduce evidence of [the appellant's] propensity for violence and threats and to possess firearms, that [the appellant] will not be prejudiced in the trial.

I have reached that conclusion because I am satisfied that the members of the jury will be able to understand and apply a direction that some evidence relevant to the prosecution and defence case of the case against Mr Marchesano is not admissible in the State's case against [the appellant]. I rule that the trial against the two accused should continue on the one indictment (ts 482 - 484).

Appeal against conviction: grounds 2 and 3: the trial judge's ruling as to the order of the closing addresses by defence counsel

118 On 5 November 2015, the trial judge heard argument from counsel as to the order in which the defence cases should be presented and as to the order of closing addresses by defence counsel.

119 On 5 November 2015, his Honour ruled that the appellant's defence case should be presented before Mr Marchesano's defence case, but that Mr Marchesano's counsel should present his closing address before the appellant's counsel. His Honour's reasons were these:

It's clear, in my view, that the overwhelmingly important factor is the court's responsibility to ensure as far as possible that the trial is fair to all parties. And because that is the court's responsibility, in my view, it does have power to order that the defence case for an accused be presented in an order that's different from the practice that's ordinarily followed in this court from the order in which they are named on the indictment. And that's the issue to which I now turn. That issue being what would be the fairest way for defence cases to be presented.

The case of Mr Marchesano is that [the appellant] killed [the deceased], and that Mr Marchesano's involvement resulted from [the appellant's] threats to him. Mr Marchesano in large part adopts as part of his defence the State's case against [the appellant].

[The appellant's] defence insofar as it involves Mr Marchesano also supports in part the State's case. That is because, as I understand it, [the appellant's] case is that Mr Marchesano has made admissions to him that are consistent with Mr Marchesano having murdered [the deceased]. So each of the accused makes allegations against the other.

In this case it seems to me that [the appellant] has significantly greater knowledge of Mr Marchesano's case than Mr Marchesano does [of the appellant's case]. That is because Mr Marchesano has given an interview to police officers in which he has given his version of events. As he was entitled to do, [the appellant] did not give an interview.

It seems to me from those facts; that is, the facts that by reason of the interview [the appellant] knows fully what Mr Marchesano's position is, whereas Mr Marchesano does not know fully what [the appellant's] position is, that the way that I can best ensure that the trial is fair is to direct that [the appellant's] case be presented before Mr Marchesano's case.

That does not flow from the order in which they are named on the indictment. That flows from my conclusion that that would be the fairest for both accused for the trial to be presented. I therefore rule that [the appellant's] case be presented before Mr Marchesano's.

And I'll now deal with the issue of closing addresses, although it is not now in dispute because of having heard from Mr Urquhart for Mr Marchesano that he accepts that he should present his closing address before Mr Edwardson [for the appellant], and that is the direction that I make (ts 1007 - 1008).

Appeal against conviction: grounds 2 and 3: the appellant's submissions

120 Counsel for the appellant submitted that the present case was unusual in that 'it was not a classic cut-throat defence case'. According to counsel, each of the accused did not seek to cast the blame on the other. Counsel claimed that the appellant's case was that he was not involved in the killing of the deceased.

121 Counsel for the appellant contended that the jury had to 'grapple with' the following issues:

(a) The assertions made by Mr Marchesano in his electronically recorded interviews with police were not admissible against the appellant, even though Mr Marchesano asserted on numerous occasions that the appellant had shot and killed the deceased.

(b) Although evidence of threats by the appellant was admitted on the basis that they were relevant to the defence of duress sought to be raised by Mr Marchesano, ultimately the defence of duress was not left to the jury because Mr Marchesano had not satisfied the evidential burden.

(c) Although evidence of violence by the appellant was admitted on the basis that it was relevant to the defence of duress sought to be raised by Mr Marchesano, ultimately the defence of duress was not left to the jury.

(d) Although evidence of the appellant's prior convictions was admitted on the basis that they were relevant to the defence of duress sought to be raised by Mr Marchesano, ultimately the defence of duress was not left to the jury.

(e) Both Ms Smillie and Mr Gillmore were involved in dealing with the deceased's body and concealing the offence after the deceased was killed, but only Mr Gillmore was the subject of 'an accomplice-type warning'.

(f) In the present case, 'it was not a matter of [the jury] determining the precise role of two accused who admitted involvement in the crime'. Rather, the jury had to determine 'first, whether the appellant was involved in the killing at all ... and then determine what the respective roles of the appellant and Marchesano [were]'.

122 According to counsel, those issues required the jury to engage in 'mental gymnastics to such an extent that this court should [determine] that directions (in the general sense, and in the sense of those actually given in this case) could not properly remove the risk of impermissible reasoning by the jury'.

123 Counsel for the appellant explained, in his oral submissions, that there were two aspects to his argument. The first aspect was that the evidence admissible in the State's case against Mr Marchesano, but inadmissible in the State's case against the appellant, was so voluminous, intermingled with other evidence and ill-defined that the jury would have been unable to identify which pieces of evidence they were required to ignore when they were considering the State's case against the appellant (appeal ts 37 - 38). That is, the jury would have been unable, in considering the State's case against the appellant, to separate the inadmissible from the admissible evidence, notwithstanding his Honour's directions (appeal ts 39). The second aspect concerned the evidence of Ms Smillie which implicated both Mr Marchesano and the appellant in the deceased's murder. Counsel argued that the jury 'may well have taken' material from Mr Marchesano's electronically recorded interviews with police (which was, of course, admissible in the State's case against Mr Marchesano but inadmissible in the State's case against the appellant) and used that material to bolster Ms Smillie's credibility when assessing whether to accept and rely on that part of her evidence which implicated the appellant (appeal ts 38). That is, the jury could not be relied on faithfully to apply his Honour's directions because 'the jury would find an attraction in Ms Smillie's evidence' (appeal ts 38 - 39).

Appeal against conviction: grounds 2 and 3: their merits

124 Clause 9(2) of sch 1 of the Criminal Procedure Act provides:

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

125 Section 133 of the Criminal Procedure Act deals with the power to order separate trials.

126 Section 133(1) provides that the powers in s 133 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.

127 By s 133(2), a court may amend or cancel an order made under s 133.

128 Section 133(3) provides, relevantly, that if a court is satisfied that an accused is likely to be prejudiced in a trial of a prosecution notice or indictment because it contains two or more charges, the court may order that the accused be tried separately on one or more of the charges.

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.

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,

131 The relevant legal principles relating to the exercise of the court's power under s 133 of the Criminal Procedure Act to order separate trials are well established. See The State of Western Australia v Bowen [2006] WASCA 133; (2006) 32 WAR 81; The State of Western Australia v Micalizzi [2010] WASCA 147; and Russell. It is unnecessary to repeat them.

132 In a joint trial each accused may assert that he or she is not the offender or the principal offender and that the co-accused is the offender or the principal offender. This defence, in which each co-accused seeks to blame the other as being responsible or principally responsible for the offence, is sometimes referred to as a 'cut-throat' defence. David Ross QC, 'One Accused's Evidence of Another's Criminal Disposition' [2006] DeakinLawRw 7; (2006) 11 Deakin Law Review 179, 182 suggests that the expression may have had its genesis in R v Wooding (1980) 70 Cr App R 256, 264 (Lawton LJ delivering the judgment of the Court of Appeal of England and Wales). In any event, the expression has been used in Australian decisions. See, for example, R v Olsen (Unreported, NSWCCA, Library No 436 of 1987, 9 February 1989) (Roden, Wood & Loveday JJ), 4; R v Farrell (1990) 48 A Crim R 311, 312 (Hunt J); Ignjatic v The Queen (1993) 68 A Crim R 333, 339 (Hunt CJ at CL, Finlay & Levine JJ agreeing); Questions of Law Reserved (No 3 of 1997) [1998] SASC 7135; (1998) 70 SASR 555, 567 (Perry J); R v Fernando [1999] NSWCCA 66 [220] (Newman, Studdert & James JJ); R v Patsalis [1999] NSWSC 649; (1999) 107 A Crim R 432 [15] (Kirby J); R v Swan [2013] QCA 217 [24] (Holmes JA, Applegarth & Jackson JJ agreeing); R v Stewart [2014] QCA 244 [70] - [71] (Fraser JA, Gotterson JA & Jackson J agreeing).

133 In Webb v The Queen [1994] HCA 30; (1994) 181 CLR 41, Mr Webb and Ms Hay were charged with the murder of a man with whom they had been drinking. Ms Hay gave evidence that, although she was involved in the violence against the deceased, it was Mr Webb who had delivered the fatal blow. Mr Webb did not give evidence. Both Mr Webb and Ms Hay were convicted. They appealed to the High Court. Their appeals were dismissed.

134 One of the grounds relied on by Ms Hay in her appeal concerned the trial judge's failure to order separate trials for each of the accused. Toohey J, (Mason CJ & McHugh J relevantly agreeing) set out the basis on which Ms Hay had sought a separate trial:

The justification, indeed the alleged necessity, for separate trials lies in the fact that in three records of interview with Webb, which could be expected to be and were adduced in evidence by the prosecution, Webb made assertions that Hay had engaged in a violent and sadistic attack on the deceased. And, it was said, although the trial judge warned the jury that this evidence was not admissible against Hay, such a direction could not cure the overwhelming prejudice inevitably caused to Hay (88).

135 Next, his Honour stated the relevant legal principles (88 - 89):

King CJ dealt with this ground by pointing out that there are 'strong reasons of principle and policy why persons charged with committing an offence jointly ought to be tried together. That is particularly so where each seeks to cast the blame on the other' ((1992) 59 SASR 585). What King CJ referred to as 'strong reasons of principle and policy' were discussed by his Honour in R v Collie ((1991) [1991] SASC 2996; 56 SASR 302, 307 - 311). I respectfully agree with that discussion which emphasises that when accused are charged with committing a crime jointly, prima facie there should be a joint trial. There are administrative factors pointing in that direction but, more importantly, consideration by the same jury at the same trial is likely to avoid inconsistent verdicts, particularly when each accused tries to cast the blame on the other or others ((R v Demirok [1976] VicRp 19; [1976] VR 244, 254). There are of course dangers for an accused in a joint trial by reason of the admission of evidence which would not be admitted at the trial of one accused. That risk must be obviated by express and careful directions to the jury as to the use they may make of the evidence so far as it concerns each accused (R v Harbach (1973) 6 SASR 427, 433).

136 Toohey J then considered the application of those principles in the appellate context of the case before the High Court:

In the present case adequate directions were given by the trial judge. It is true that Webb did not give evidence and was therefore not subject to cross-examination, though the jury heard his statements to the police implicating Hay. But, as King CJ observed ((1992) 59 SASR 585): 'That is a common feature of a joint trial and does not of itself render separate trials necessary.' Properly instructed by the trial judge, as they were, the jury were capable of appreciating the use they could make of evidence as against each of the appellants. It has not been shown that a substantial miscarriage of justice is likely to have occurred (89).

137 In Ali v The Queen [2005] HCA 8; (2005) 79 ALJR 662, the appellant father and the co-accused mother were tried jointly on a number of counts relating to the death of their infant child. After a trial the appellant was convicted of murder, concealing the birth of a child and improperly interfering with a corpse, and the co-accused was convicted of manslaughter and concealing the birth of a child. On appeal to the High Court, the appellant submitted, relevantly, that flagrant incompetence by his counsel at trial, in not requesting separate trials, had resulted in a miscarriage of justice. The appeal was dismissed.

138 Callinan and Heydon JJ held that any application for a separate trial would have been doomed to failure [58]. Their Honours noted that s 597B of the Criminal Code (Qld) conferred a discretion on the trial judge, at any time during the trial of two or more persons charged in the same indictment, that the persons charged be tried separately. Callinan and Heydon JJ then observed:

The events leading up to the murder and dismemberment of the infant, and the guilt or innocence of the appellant and the co-accused, were closely interconnected. Their relationship, their similar motives, their almost equal opportunity to commit the crimes, and their capacity, either separately or jointly to commit them, all argued very strongly in favour of a joint trial. There were no special or other features of the case requiring that they be tried separately. That one might seek to incriminate the other, as each accused here did, could provide no justification for a direction that the appellant and his co-accused be tried separately (R v Palmer [1969] 2 NSWLR 13). A joint trial of the appellant and the co-accused served to give the jury the means of obtaining a conspectus of the respective roles of each of them in the crimes with which they were charged [58].

139 In the present case, Ms Smillie and Mr Gillmore gave direct evidence implicating the appellant.

140 On the State's case, on 26 October 2013 Ms Smillie was in the company of both the appellant and Mr Marchesano. Although she was not charged with any offence, Ms Smillie admitted:

(a) assisting with the burning and destruction of the deceased's car; and

(b) subsequently accompanying the appellant and Mr Marchesano to the bush location where she saw Mr Marchesano pull out 'the top of [the deceased's] head' and suggesting that they pour acid on the body.

141 Mr Gillmore pleaded guilty to the offence of being an accessory after the fact to the deceased's murder. On 8 May 2014, he was sentenced to a term of 2 years 6 months' immediate imprisonment.

142 The trial judge gave an accomplice warning in respect of Mr Gillmore, but not in respect of Ms Smillie.

143 Mr Marchesano made statements in his electronically recorded interviews with police which directly implicated the appellant.

144 I am of the opinion, for the following reasons, that grounds 2 and 3 are without merit.

145 First, I accept that a consequence of the appellant being tried jointly with Mr Marchesano was that evidence was adduced in relation to the appellant which would not have been heard by the jury if the appellant had been tried separately from Mr Marchesano.

146 Secondly, the appellant's case at the trial did not involve merely a general challenge to the veracity of the State's witnesses. The appellant advanced a defence which implicated Mr Marchesano as well as a defence of alibi.

147 The appellant's counsel put to Ms Smillie in cross-examination a number of propositions (which Ms Smillie denied) to the effect that Mr Marchesano had made statements in her presence which indicated that Mr Marchesano was responsible for killing the deceased (ts 434 - 435).

148 During his closing address, the appellant's counsel made extensive submissions as to the role of Mr Marchesano and Ms Smillie in the killing of the deceased. See my summary at [105] above. As I have mentioned, on a fair reading of the closing address of the appellant's counsel, considered as a whole, the appellant's case included the implicit allegation that Mr Marchesano may have shot and killed the deceased.

149 Thirdly, the mere fact that a defence raised by one co-accused is that he or she was acting under the duress of another co-accused, while the other co-accused raises a defence of alibi, is usually an insufficient reason for not trying the accused jointly. See R v Gibb [1983] VicRp 78; [1983] 2 VR 155, 163 (Young CJ, Crockett & King JJ).

150 Fourthly, the principle that accused persons who are alleged to have offended jointly should ordinarily be tried together is not usually weakened by the fact that one (and only one) of two co-accused implicates the other. See Stewart [71].

151 Fifthly, as in Ali, a joint trial of the appellant and Mr Marchesano advanced the administration of justice in that it gave the jury the means of obtaining an overview of the respective roles of each of them in the offence with which they were each charged.

152 Sixthly, the trial judge was cognisant of the risk of prejudice to the appellant which flowed from the presentation of evidence which was inadmissible against the appellant, either because the evidence was only relevant to the State's case against Mr Marchesano or because the evidence was relied on by Mr Marchesano to support the proposition that Mr Marchesano was acting under duress or that Mr Marchesano was less likely than the appellant to have shot the deceased.

153 His Honour took a number of steps to protect the appellant from the risk of prejudice, namely:

(a) When evidence was adduced at the trial which was not admissible in the State's case against the appellant, his Honour specifically drew that fact to the jury's attention and explained the limited use to which they could put the evidence (ts 294 - 295, 515 - 517, 614, 625).

(b) The appellant's counsel was permitted to cross-examine the State's witnesses after Mr Marchesano's counsel so that the appellant's counsel would be in a position to deal with any evidence which Mr Marchesano's counsel might adduce in cross-examination of those witnesses (ts 145 - 150, 170 - 171, 476 - 485).

(c) The appellant's counsel was permitted to address the jury in closing after Mr Marchesano's counsel (ts 1005 - 1008, 1319).

(d) His Honour directed the jury in his summing up as to what evidence was admissible in the State's case against the appellant and as to the limited use to which they could put other evidence (ts 1457 - 1458).

154 As to the contents of Mr Marchesano's electronically recorded interviews with police, his Honour directed the jury in his summing up:

For each accused you consider the evidence relevant to that accused and on that evidence you reach your verdicts. What an accused person said or did outside the courtroom can be considered by you when you are considering the charge against that accused person. But it's not relevant to the charge against the other accused person what a person who is accused said outside the courtroom ...

So for example, what Mr Marchesano said in his interview by police officers is evidence in the State's case against Mr Marchesano. You consider it when you are considering the State's case against Mr Marchesano. It's not evidence in any way in the State's case against [the appellant]. When considering the State's case against [the appellant] you do not have regard to what Mr Marchesano said (ts 1457).

155 I have already set out at [109] above his Honour's directions to the jury in his summing up about the appellant's record of convictions and the appellant's previous violence and threats of violence.

156 Seventhly, the appellant does not criticise or challenge any of his Honour's directions to the jury.

157 Eighthly, the statements by Mr Marchesano in his electronically recorded interviews with police, and the evidence given by other witnesses as to alleged threats previously made and alleged violence previously inflicted by the appellant and as to the appellant's previous convictions, remained relevant and admissible despite the trial judge's decision that Mr Marchesano's alleged defence of duress should not be left to the jury. Although the statements and evidence in question were not admissible in the State's case against the appellant, that material remained relevant to and admissible in Mr Marchesano's case in that the statements and evidence supported his contention that it was the appellant who had shot the deceased. This contention was an integral aspect of the submissions made by Mr Marchesano's counsel in closing to the effect that Mr Marchesano might be convicted of the alternative and lesser offence of manslaughter, on the basis that he aided the appellant but did not have knowledge of the appellant's intention to commit murder.

158 Ninthly, the trial of the appellant and Mr Marchesano did not involve a complicated mixture of evidence which the jury could not reasonably have been expected to evaluate and deal with appropriately. The evidence admissible in the State's case against Mr Marchesano, but inadmissible in the State's case against the appellant, was not so voluminous, intermingled with other evidence and ill-defined that the jury would have been unable to identify which pieces of evidence they were required to ignore when they were considering the State's case against the appellant.

159 Further, there is no reasonable basis for apprehending that the jury may have taken into account material from Mr Marchesano's electronically recorded interviews with police for the purpose of bolstering Ms Smillie's credibility when assessing whether to accept and act on that part of her evidence which implicated the appellant. His Honour's direction to the jury that, when it was considering the State's case against the appellant, the jury must not have regard to what Mr Marchesano said in his electronically recorded interviews with police would have guarded against any risk that the jury may have taken that material into account for the purpose of bolstering Ms Smillie's credibility. The appellant's very competent and experienced counsel did not seek a direction or a redirection from his Honour on this point.

160 Ms Smillie and Mr Gillmore were the principal witnesses who gave evidence adverse to the appellant. The jury had to evaluate, in the conventional manner, the credibility of Ms Smillie and Mr Gillmore and the reliability of their evidence. As is customary in any criminal trial, the jury was entitled to accept some or all of their evidence or to reject some or all of their evidence. The evidence of Ms Smillie and Mr Gillmore did not only inculpate the appellant. It also corroborated to some extent the admissions against interest made by Mr Marchesano in his electronically recorded interviews with police. In the circumstances (in particular, having regard to the nature of the State's case, the appellant's case and Mr Marchesano's case in closing, and as left by the trial judge to the jury, and to the election of each of the appellant and Mr Marchesano not to give evidence at the trial) the jury was not required to form separate assessments of Ms Smillie's and Mr Gillmore's credibility against each of the appellant and Mr Marchesano by reference to substantially different evidence.

161 His Honour gave the jury an orthodox separate consideration direction in addition to directions as to what evidence was admissible against each of the appellant and Mr Marchesano and as to the use which the jury could make of the evidence as against each of them. The jury's task was to examine the State's case against each of the appellant and Mr Marchesano, in the context of all of the evidence that was admissible against him, separately from the other accused, and solely by reference to the evidence that was admissible against him. The jury was required to put aside the evidence and findings it made in relation to one of the appellant or Mr Marchesano when considering the State's case against the other. I am satisfied that the jury was capable of performing those tasks in accordance with his Honour's directions. It was reasonable to expect that the jury, properly directed, would not take into account, when it considered the State's case against the appellant, any prejudicial evidence that was inadmissible against him. The jury would have been capable of following his Honour's directions.

162 As I have mentioned, a criminal trial on indictment proceeds on the assumption that, as a general rule, the jurors are true to their oath or affirmation and they understand and obey the trial judge's directions. In the present case, no features of the trial and no aspects of the evidence displaced the general rule or require the conclusion that, in the circumstances, the general rule should not have been applied.

163 Tenthly, there were no special or other features of the case that required the appellant and Mr Marchesano to be tried separately.

164 Eleventhly, the present case is distinguishable from Russell.

165 In Russell, the co-accused and Russell did not run cut-throat defences; that is, it was not a case where each of the accused was alleging that the other accused had killed the victim [402] The State alleged that Russell was the principal offender and the co-accused was 'merely' an accessory after the fact [402]. By contrast, in the present case, Mr Marchesano's counsel asserted that the appellant was responsible for killing the deceased, and the closing address of the appellant's counsel, considered as a whole, included the implicit allegation that Mr Marchesano may have shot and killed the deceased.

166 In Russell, the evidence adduced by counsel for the co-accused, that was not admissible in the State's case against Russell, had a significantly greater degree of prejudice to Russell than the evidence adduced by counsel for Mr Marchesano, that was not admissible in the State's case against the appellant, had to the appellant [365], [373], [380].

167 In Russell, the only defence run by the co-accused was duress. This court held in Russell that the trial judge should not have left duress to the jury [381]. The co-accused did not have a defence [384]. By contrast, in the present case, Mr Marchesano had a defence to the charge of murder apart from duress.

168 In Russell, counsel for the co-accused cross-examined the State's witnesses after counsel for Russell, and the co-accused's counsel addressed the jury in closing after Russell's counsel [387]. By contrast, in the present case, the trial judge directed that the appellant's counsel be permitted to cross-examine the State's witnesses after Mr Marchesano's counsel and that the appellant's counsel be permitted to address the jury in closing after Mr Marchesano's counsel.

169 In Russell, the trial judge did not (with one exception) warn or instruct the jury, when the highly prejudicial evidence that was not admissible or should have been excluded in the State's case against Russell, was given, that the evidence in question was only relevant to the co-accused's defence of duress in the State's case against her and had no relevance to the State's case against Russell [381]. By contrast, in the present case, when evidence was adduced at the trial that was not admissible in the State's case against the appellant, the trial judge specifically drew that fact to the jury's attention and explained the limited use to which they could put the evidence.

170 Twelfthly, the present case did not involve complications or difficulties of the nature or to the extent that existed in such cases as R v Jones (1991) 55 A Crim R 159, R v Pham [2004] NSWCCA 190 and The State of Western Australia v Tolliday [2004] WASC 231. It was held in those cases that it was impossible to craft directions which a jury could understand and be expected to follow.

171 In Jones, the applicants, Jones and Waghorn, were tried jointly on a count of murder. The Crown's case was that, after a dispute between the applicants and the deceased over a drug transaction, the applicants repeatedly attacked the deceased until he died. After making statements to the police which implicated Waghorn, Jones eventually made full admissions. Waghorn made various statements to the police denying any knowledge of or involvement in the killing. At the trial Jones gave unsworn evidence. Waghorn remained silent. The evidence of the Crown's principal witness, Mrs Moloney, was critical in placing Waghorn at all material times at the crime scene. She gave evidence that Waghorn made incriminating statements during a struggle in which the deceased was killed and that after the struggle she saw Waghorn with blood on his clothes. Mrs Moloney's evidence was attacked in cross-examination. It was suggested that she was not a reliable or credible witness. She had numerous convictions, was a drug addict, and was an intimate friend of the deceased. Jones, in several out-of-court written statements, accused Waghorn of being the instigator of the killing. According to Jones, Waghorn encouraged him to assist in the stabbing. Jones asserted that Waghorn had buried the deceased's body in his own backyard and had disposed of his blood-spattered clothing at the tip. Jones's out-of-court statements confirmed Mrs Moloney's account of the circumstances of the killing. Although Jones's unsworn evidence in court was not admissible as evidence against Waghorn, it restated what Jones had said out of court and was tailored with Mrs Moloney's evidence on oath in court; in particular, in its implication of Waghorn. So, Mrs Moloney's credit was bolstered, at least on the issue of the killing, by Jones's out-of-court statements and also his unsworn evidence in court. The Court of Criminal Appeal of Victoria allowed Waghorn's appeal and ordered a new trial.

I could not be satisfied that any warning by a trial judge (and there were several given in this trial) could hope to persuade a jury, which first accepted Mrs Maloney's evidence as to Jones's implication in the killing, especially because of Jones's admissions against interest confirmatory of it, to reconsider that same evidence implicating Waghorn, by disregarding the prior acceptance of it assisted by Jones's admissions.

I think that Jones's admissions against interest, confirmatory of Mrs Maloney's account on oath implicating Waghorn, admissions not admissible against Waghorn, must necessarily have weighed heavily against him irrespective of any number of warnings given to the jury.

Furthermore, as my brethren have mentioned, Jones's out-of-court statements contained damning prejudicial reflections on Waghorn's propensity for viciousness and criminality which, though not admissible against him, were in my view most likely to have influenced the jury against Waghorn.

I am satisfied that, in the end result, the likelihood that a miscarriage of justice occurred, and that Waghorn was denied a chance of acquittal because of all the circumstances to be seen at the conclusion of the trial, is such that Waghorn's conviction should now be set aside and a new trial ordered (167).

173 Similarly, in Pham, the Court of Criminal Appeal of New South Wales held that the appellant should have been tried separately from his co-accused on the ground that a jury could not reasonably be expected to arrive at a conclusion as to the credibility and reliability of the Crown's principal witness based on the evidence admissible against the co-accused and then undertake that evaluative process again on the evidence admissible against the appellant, but disregarding the evidence inadmissible against him. Adams J (Spigelman CJ agreeing) said:

[I]t would have been virtually impossible, as a matter of common sense, for the jury to disregard Phong's interview in dealing with the case against the appellant, despite the emphatic directions that Phong's alleged confession formed no part of the case against the appellant and should be disregarded so far as he was concerned [34].

174 In my opinion, the present case is distinguishable from Jones and Pham. As I have mentioned, in the circumstances of the present case (in particular, having regard to the State's case, the appellant's case and Mr Marchesano's case in closing, and as left by the trial judge to the jury, and to the election of each of the appellant and Mr Marchesano not to give evidence at the trial) the jury was not required to form separate assessments of Ms Smillie's and Mr Gillmore's credibility against each of the appellant and Mr Marchesano by reference to substantially different evidence.

175 In Tolliday, the applicant, Oblak, and a co-accused, Tolliday, were jointly charged with wilful murder. Oblak applied for a direction that he be tried separately from Tolliday. Tolliday supported the application. The State opposed it. The State's case was that Oblak inflicted the stab wounds from which the deceased died and that Tolliday aided Oblak. There was abundant evidence that Oblak had been in a relationship with the deceased. At the time of the alleged offence they had ceased cohabiting. Forensic evidence established that when she died the deceased was about 16½ weeks pregnant and that Oblak was the father of the unborn child to a probability of 99.96%. The pregnancy was a source of angst for Oblak. He feared that he would not have access to the child. Tolliday was Oblak's best friend. He aided Oblak in the knowledge that Oblak intended to kill the deceased. The State's case against Tolliday was based principally on his admissions. Its case against Oblak was circumstantial and was based on opportunity, motive and consciousness of guilt lies. Tolliday implicated Oblak in the offending in out of court statements made in three video-recorded interviews with police. Some of the details described by Tolliday were corroborated by evidence admissible against both accused. Le Miere J directed that Oblak be tried separately from Tolliday. His Honour said:

In my view, Oblak will be irremediably prejudiced if the jury hears the out of court statements by Tolliday. The prejudice would be so great that it could not be overcome by a direction from the trial Judge pointing out to the jury that the evidence is not admissible against Oblak and is to be disregarded by the jury in considering the case against Oblak.

The State submits that a strong direction would be required so far as Tolliday's admissions are concerned. I have considered the nature and extent of the directions that might be given to the jury. In my view, they would not be sufficient to prevent an injustice being caused to Oblak in a joint trial [19] - [20].

176 In my opinion, the present case is distinguishable from Tolliday. In Tolliday, although there was some overlap in the State's evidence against both accused, the State's case against Tolliday was based on his own admissions whereas its case against Oblak was circumstantial. In the present case, the State's case against Mr Marchesano relied to a significant extent on admissions he had made in the electronically recorded interviews with police. However, Ms Smillie's evidence was relevant and admissible, to a substantial extent, against both the appellant and Mr Marchesano. Also, Mr Gillmore gave evidence as to the efforts made to dispose of or destroy evidence after the deceased had been killed. Mr Gillmore's evidence included assertions as to the appellant's and Mr Marchesano's participation in the 'clean-up' as well as an assertion as to the appellant's admission to him when the deceased's body was being buried.

177 I am satisfied that the trial judge's decision to refuse to order separate trials was not erroneous. I am also satisfied that the trial of the appellant jointly with Mr Marchesano did not occasion a miscarriage of justice.

Appeal against conviction: ground 4: the trial judge's reason for not giving an accomplice warning in respect of Ms Smillie

179 The trial judge's reasons for not giving an accomplice warning in respect of Ms Smillie were as follows:

Tessa Smillie is an important witness in the State's case against [the appellant]. She gave evidence that on the morning of 26 October 2013 she went with [the appellant] and Mr Marchesano to [the appellant's] parents' home where [the appellant] collected a wooden box, that all three of them then went to Mr Marchesano's home where the contents of the box were revealed to be a rifle and that [the appellant] left the scene without anyone else in her car and that later on [the deceased] arrived and Mr Marchesano and [the deceased] left.

Mr Marchesano and [the appellant] subsequently returned without [the deceased] and she later assisted the two disposing of the body of the deceased man. She also gave evidence that when she was first interviewed by police officers she denied any knowledge about the matters, but she subsequently made admissions and gave evidence which I've briefly summarised.

Section 50 of the Evidence Act deals with corroboration warnings: A corroboration warning in relation to a trial means a warning to the effect that it is unsafe to convict a person who is being tried on the uncorroborated evidence of one witness. The section provides that: A trial judge is not required by any rule of law or practice to give such a warning. And further that: The judge shall not give such a warning unless the judge is satisfied that the warning is justified in the circumstances.

Counsel for [the appellant] submits that the warning is justified because of the multiple clear deficiencies in the reliability of Ms Smillie as a witness. He points to her evidence that she was using methylamphetamines heavily in the period leading up to 26 October 2013, that she had not slept for approximately a week, that she was very anxious about her own situation, that she assisted in the disposal of the body and her evidence that the police told her that - when they were interviewing her in Adelaide that if she didn't assist she was at risk herself of being charged.

...

It's my view the jury will have no difficulty in appreciating both the criticisms of her reliability as a witness that can legitimately be made and which were clearly highlighted in the cross-examination of her and the importance of her evidence to the State's case.

In my view there is no danger that the jury will overlook the potential weaknesses in her evidence or the importance of her evidence if a corroboration warning is not given. I have reached the conclusion that a corroboration warning is not justified in the circumstances of this case and I will not give such a warning.

That does not preclude in any way, of course, legitimate criticism of her evidence which a jury will inevitably hear (ts 1253 - 1254).

Appeal against conviction: ground 4: the appellant's submissions

180 Counsel for the appellant submitted that the following circumstances justified the trial judge's decision to give 'an accomplice-type warning' in respect of Mr Gillmore:

(a) Mr Gillmore pleaded guilty to being an accessory after the fact to the deceased's murder. The maximum penalty for the offence is 14 years' imprisonment. Mr Gillmore agreed to give evidence as a State witness at the appellant's and Mr Marchesano's trial and to cooperate with the prosecution and law enforcement authorities. Consequently, he received a reduced sentence, namely 2 years 6 months' immediate imprisonment.

(b) The sentencing judge informed Mr Gillmore that he could be brought before the court and resentenced if he did not give evidence truthfully and consistently with his account to the police.

(c) Mr Gillmore admitted in his evidence at the trial that, initially, he lied to police when they spoke to him. He told the police, in response to a question from them, that he had not taken any drugs in the preceding 48 hours. In fact, he had smoked methylamphetamine during that period (ts 540 - 541).

(d) Mr Gillmore also admitted in his evidence at the trial that during 2013 he was a regular user of methylamphetamine (ts 542).

(e) On the State's case, on 26 October 2013 Mr Gillmore consumed and supplied methylamphetamine to the appellant and Ms Smillie when, at the appellant's request, he attended Mr Marchesano's house.

181 Counsel argued that when, on the State's case, the appellant and Mr Marchesano returned to Mr Marchesano's house after the appellant had shot and killed the deceased, Ms Smillie thought that something bad had happened. In particular, she gave evidence of her belief that the appellant and Mr Marchesano had shot the deceased (ts 384). She soon realised that her suspicion was correct and that the deceased had been killed (ts 386). Ms Smillie gave evidence that the appellant broke up the box which had contained the rifle and the wooden parts of the weapon. He asked 'us' to help 'clean up' the small pieces of wood in the carport of Mr Marchesano's house. Ms Smillie said that she helped the appellant burn some items (ts 306, 388).

182 Counsel for the appellant submitted that, on the State's case, an agreement was made between the appellant, Mr Marchesano, Mr Gillmore and Ms Smillie to 'clean-up' and destroy evidence that might implicate those involved in the deceased's murder. According to counsel, the following facts revealed Ms Smillie's involvement in the 'clean up' and destruction of evidence:

(a) According to Ms Smillie, when the deceased's car was taken to Bartons Mill to be burnt, the appellant had difficulty setting fire to the car. She did not know who suggested putting petrol in the boot, but she suggested 'just lighting it straight from the boot after throwing it in' (ts 248).

(b) When, on her evidence, she went with the appellant and Mr Marchesano to the place where she saw Mr Marchesano pull out 'the top of [the deceased's] head', she was asked for her opinion as to what they should do (ts 250). In particular, they asked for her opinion as to '[w]hether to take his body out on a boat or to pour acid on him' (ts 251). She offered her view that they should 'pour acid on him' (ts 251).

183 According to counsel for the appellant, there were 'deficiencies and dangers associated with the reliability and credibility' of Ms Smillie, including:

(a) Ms Smillie's admitted assistance in disposing of the deceased's body and other items connected to the killing.

(b) Ms Smillie's initial denial to police of any knowledge as to the deceased's death and her subsequent change of position when she was given the choice of being a State witness rather than being charged.

(c) The relationship between Ms Smillie and Mr Marchesano and the opportunity they had to collude (in the period they were together after the killing and before police spoke to them) to produce a consistent version of events if they were confronted by police.

(d) Ms Smillie's heavy use of methylamphetamine in the period leading up to 26 October 2013 including the fact that she had not slept for a week.

184 According to counsel for the appellant, there were 'hidden dangers' associated with Ms Smillie's evidence, namely:

(a) Ms Smillie gave evidence that she was with the appellant and Mr Marchesano 'for close to the entirety of the relevant period over the course of the alleged offending', save for the killing itself, and consequently there arose the danger that 'by virtue of her in-depth knowledge of what occurred in the lead up to and following the death of [the deceased]', Ms Smillie was peculiarly equipped, by reason of that knowledge, to convince the unwary that her lies were the truth.

(b) Ms Smillie's knowledge presented her with the opportunity to 'tailor her evidence' to exculpate herself from any involvement in the criminal activities and, instead, to inculpate the appellant.

(c) There was 'a real and appreciable possibility' of the jury inferring that Ms Smillie was 'a peripheral victim' in the matter based on the following:

(i) Ms Smillie's evidence was given in 'a highly emotional fashion', over a period of about three days, and was punctuated on numerous occasions 'by emotional breakdowns';

(ii) the inference from her highly emotional evidence was that Ms Smillie had been traumatised by what had occurred or what she had seen; and

(iii) Ms Smillie remarked, consistently, that she did not understand why she had been 'brought into the alleged killing (despite parts of her evidence suggesting her complete and voluntary involvement at various stages)'.

185 Counsel argued that the effect of his Honour's decision to confine 'the accomplice-type warning' to Mr Gillmore, was to give 'an artificial judicial confirmation as to the credibility of Smillie's evidence'. That is, by giving the warning in respect of Mr Gillmore's evidence but not giving the warning in respect of Ms Smillie's evidence, his Honour implied that 'Ms Smillie's evidence was credible and was not prone to the same pitfalls as that of Gillmore'. This, in turn, had the effect of diminishing the impact of counsel for the appellant's submissions to the jury in relation to Ms Smillie's credibility.

Appeal against conviction: ground 4: its merits

186 Section 50 of the Evidence Act 1906 (WA) was inserted in 1988 and amended in 1992. It provides:

(1) In this section corroboration warning in relation to a trial means a warning to the effect that it is unsafe to convict the person who is being tried on the uncorroborated evidence of one witness.

(2) On the trial of a person on indictment for an offence -

(a) the judge is not required by any rule of law or practice to give a corroboration warning to the jury in relation to any offence of which the person is liable to be convicted on the indictment; and

(b) the judge shall not give a corroboration warning to the jury unless the judge is satisfied that such a warning is justified in the circumstances.

187 Section 50 of the Evidence Act abrogates the common law rule of practice that existed before its enactment. It is established, however, that notwithstanding the effect of s 50, it will usually be essential in this State, in an appropriate case, that a jury receive a clear and emphatic warning from the trial judge of the potential dangers in acting on the evidence of a witness to convict, which dangers exist because that witness is an accomplice, and which the jury might not appreciate without the warning. It will usually be essential whether or not the evidence of the witness is the sole evidence and whether or not that evidence is corroborated. These matters may well affect the form of the direction. See Foo v The Queen [2001] WASCA 406; (2001) 167 FLR 423 [30] (Parker J, Steytler J and Olsson AUJ agreeing). A warning will be required whenever it is necessary to avoid a perceptible risk of a miscarriage of justice in relation to the assessment of the evidence of the accomplice which arises from the circumstances of the case. See Milne v The State of Western Australia [2005] WASCA 38 [43] - [52] (Roberts-Smith JA, Malcolm CJ and Steytler P agreeing); White v The Queen [2006] WASCA 62 [77] - [78] (Wheeler JA); McKay v The State of Western Australia [2007] WASCA 196 [74] - [77] (Miller JA, Buss JA and Le Miere AJA agreeing).

188 In Cecez v The State of Western Australia [2007] WASCA 260; (2007) 35 WAR 344, I reviewed s 50 of the Evidence Act and a number of authorities (including several decisions of the High Court) in connection with the circumstances in which a trial judge is required to give a warning to the jury, in the context of a prosecution witness who is not an accomplice, but who is of bad character and has his or her own interests to serve, and whose evidence is significant (or even critical) to the prosecution case. The authorities I reviewed included Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79; Crampton v The Queen [2000] HCA 60; (2000) 206 CLR 261; Fleming v The Queen [1998] HCA 68; (1998) 197 CLR 250; Carr v The Queen [1988] HCA 47; (1988) 165 CLR 314; White; and Director of Public Prosecutions v Faure [1993] VicRp 87; [1993] 2 VR 497. It is unnecessary, in these reasons, again to review the authorities.

189 The authorities do not hold that, as a matter of course, a trial judge must instruct or warn the jury as to the need for careful scrutiny of the evidence of a prosecution witness whose evidence is significant (or even critical) to the prosecution case if the witness is of bad character or has his or her own interests to serve. The necessity or desirability for such an instruction or warning will depend, in each case, on the particular circumstances, including whether there is a risk that the jury may be unable to appreciate without assistance, or may overlook, some deficiency or danger associated with the witness or his or her evidence. See Smith v The State of Western Australia [2008] WASCA 128; (2008) 37 WAR 297 [207] (Buss JA, Miller JA agreeing); Dunn v The Queen [2015] WASCA 126; (2015) 252 A Crim R 147 [90] - [97] (Buss JA, Newnes & Mazza JJA agreeing).

190 As to Mr Gillmore, the trial judge decided to give the jury a warning about Mr Gillmore's evidence because he had pleaded guilty to being an accessory after the fact and had received a reduced sentence on the basis that he could be brought back before the court and given a longer term of imprisonment if he did not give truthful evidence in accordance with his witness statement.

191 As to Ms Smillie, any dangers inherent in her evidence would have been obvious to the jury. Numerous issues which, on the appellant's case, affected adversely the credibility of Ms Smillie and the reliability of her evidence were expounded upon at length by the appellant's counsel during his closing address (ts 1383 - 1387, 1408 - 1415). His Honour referred in his summing up to counsel's submissions and to the evidence on which they were based (ts 1465 - 1466, 1473 - 1474).

192 It is not apparent from my review of Ms Smillie's evidence that she tailored her evidence to the detriment of the appellant or to the advantage of Mr Marchesano. Her account of events implicated both the appellant and Mr Marchesano. Also, my review of Ms Smillie's evidence does not reveal that she had any attractive features as a witness or that her evidence had any attractive features which might cause the jury to view her sympathetically or to accept her evidence without careful scrutiny.

193 In my opinion, there were no hidden dangers in relation to Ms Smillie's evidence which the jury might have been unable to appreciate without an instruction or a warning from the trial judge. It is not apparent that any circumstances existed which gave rise to a risk that the jury might overlook Ms Smillie's status as a person who:

(a) at the material time, was an habitual user of methylamphetamine;

(b) had not slept for a week prior to the deceased's death;

(c) had been involved in the 'clean-up' following the deceased's killing and the destruction of evidence;

(d) had suggested igniting the fire in the boot of the deceased's car to facilitate the appellant's endeavours to set it on fire;

(e) had suggested that the appellant and Mr Marchesano should pour acid on the deceased's body;

(f) had, at least initially, lied to police and had made inconsistent statements;

(g) had agreed to cooperate with the police after having been informed by Detective Turner that he would prefer that she give evidence as a State witness rather than be charged as an accessory;

(h) may have had a motive to diminish her own involvement in the events before and after the deceased's killing by exaggerating the involvement of the appellant or Mr Marchesano; and

(i) at the material time, was a friend of Mr Marchesano and had an opportunity to collude with him before they were interviewed by the police.

194 There is no reasonable basis for apprehending that his Honour's decision to give an accomplice warning in respect of Mr Gillmore, but not in respect of Ms Smillie, may have implied that Ms Smillie's evidence was credible and was not prone to the same risks as Mr Gillmore's evidence or have the effect of diminishing the impact of counsel for the appellant's detailed and forceful submissions in closing as to Ms Smillie's credibility.

195 I am satisfied that his Honour's decision not to give an accomplice warning in respect of Ms Smillie was not erroneous. I am also satisfied that the absence of an accomplice warning did not cause the appellant to suffer a miscarriage of justice.

197 I would grant leave to appeal on grounds 1 and 4.

198 However, none of the grounds of appeal has been made out.

199 The appeal against conviction must be dismissed.

Appeal against sentence: the ground of appeal

201 The ground alleges in effect that the minimum non-parole period of 26 years was manifestly excessive. The ground does not allege that the trial judge made any express error.

202 On 11 June 2016, Mazza JA referred the application for leave to appeal to the hearing of the appeal.

Appeal against sentence: the facts and circumstances of the offending and the appellant's personal circumstances

203 I have previously outlined the facts and circumstances of the offending.

204 The deceased was aged 30 when he was killed. At that time Mr Marchesano was aged 18 and the appellant was 33.

205 The trial judge was satisfied beyond reasonable doubt that Ms Smillie was a reliable witness. His Honour accepted that she had given a truthful account of events.

206 His Honour made the following findings of fact for the purposes of sentencing:

(a) On the morning of the murder, the appellant, Mr Marchesano and Ms Smillie collected a firearm from the appellant's parents' house.

(b) Next, they travelled to Mr Marchesano's house. The appellant showed the firearm to Ms Smillie.

(c) At Mr Marchesano's house, Mr Marchesano spoke to Ms Smillie (out of the appellant's hearing) and told her that she and Mr Marchesano, or the deceased, 'had to die'. They then joined the appellant. Mr Marchesano confirmed to the appellant that he had told Ms Smillie what was going to happen.

(d) The appellant left Mr Marchesano's house in Ms Smillie's car and travelled to Scene 1 where he waited for the deceased.

(e) The deceased arrived at Mr Marchesano's house shortly after the appellant had left Mr Marchesano's house. The deceased and Mr Marchesano then travelled in the deceased's car to Scene 1 where the appellant was waiting.

(f) Mr Marchesano knew that the appellant was going to shoot the deceased.

(g) At Scene 1 the appellant shot and killed the deceased.

(h) After the murder, Mr Marchesano and the appellant burnt the clothes they had been wearing. They also burnt the wooden parts of the firearm which had been used. The metal parts of the firearm were given to Mr Gillmore to dispose of. The deceased's car was cleaned.

(i) During the following days, Mr Marchesano and the appellant burnt the deceased's car and buried his body in a clandestine grave.

(j) The appellant was 'in charge' of hiding or destroying the evidence and burying the deceased's body. He arranged to borrow a vehicle to transport the deceased's body to its final place of burial.

(k) When dealing with the deceased's body, the appellant said of the deceased 'I'll see you in hell [the deceased] and I'll kill you again'.

(l) Mr Marchesano was not involved in committing the murder because of threats made against him by the appellant.

(m) At some time prior to their arrival at the appellant's parents' house on the day of the murder, Mr Marchesano agreed with the appellant to participate in the killing of the deceased. The agreement was not made as a result of any threats by the appellant.

(n) Mr Marchesano's offending was not less serious than the appellant's.

207 None of his Honour's findings of fact is challenged in the appeal.

208 The trial judge found that there were several aggravating features. First, the murder was planned. Secondly, the deceased was killed by the use of an unlicensed firearm. Thirdly, the murder was unprovoked. Fourthly, the deceased was lured to a bush location where he was vulnerable and had no means of defending himself. Fifthly, the deceased's body was hidden so that his family did not know for two months what had happened to him. Sixthly, the deceased's body was dealt with in a disrespectful manner.

209 His Honour found that there was very little mitigation in the appellant's personal circumstances. He had numerous prior convictions including for offences of violence. The appellant had, however, taken some steps towards rehabilitation while he was in custody on remand.

210 The trial judge had regard to victim impact statements from the deceased's mother, grandmother and sister. His Honour noted the traumatic effect which the murder had on the deceased's family.

Appeal against sentence: the appellant's submissions

211 Counsel for the appellant submitted that the minimum non-parole period of 26 years was unreasonable or plainly unjust in all the circumstances.

212 Counsel emphasised that, in his submission, sentences which have been imposed for comparable offending or for offending of a greater degree of seriousness than the appellant's, reveal implied error by the trial judge.

213 A ground of appeal which alleges that a sentence (including a minimum term) is manifestly excessive asserts the existence of an implied or inferred error.

214 It is necessary, in determining whether a minimum term is manifestly excessive, to examine it from the perspective of the principles applicable to the fixing of the length of a non-parole period and the factors which a sentencing judge must take into account when fixing a minimum term. Relevant factors include the maximum penalty for the offence, any upper or lower limits on the available minimum term, the standards of sentencing customarily observed with respect to minimum terms for that offence, the place which the criminal conduct occupies on the scale of seriousness of offences of the kind in question, and the personal antecedents of the offender.

215 A non-parole period is the minimum period of imprisonment that justice requires the offender to serve. It mitigates the offender's punishment in favour of rehabilitation through conditional freedom after imprisonment for the minimum period. See Power v The Queen [1974] HCA 26; (1974) 131 CLR 623, 628 - 629 (Barwick CJ, Menzies, Stephen & Mason JJ); Deakin v The Queen [1984] HCA 31; (1984) 58 ALJR 367, 367 (Gibbs CJ, Murphy, Wilson, Brennan & Dawson JJ); Bugmy v The Queen [1990] HCA 18; (1990) 169 CLR 525, 530 - 531 (Mason CJ & McHugh J), 536 (Dawson, Toohey & Gaudron JJ).

216 In Pedersen v The State of Western Australia [2010] WASCA 175 [41] - [46], I made a number of observations (McLure P & Mazza J agreeing) about the determination of the minimum non-parole period where an offender is to be sentenced to life imprisonment for the offence of murder, and the sentencing court has decided (as in the present case) to proceed under s 90(1)(a) of the Sentencing Act and fix a minimum period. It is unnecessary to repeat those observations. See also The State of Western Australia v Stoeski [2016] WASCA 16 [42] - [45] (Buss JA, Mazza JA & Mitchell J agreeing).

217 The guidance afforded by comparable cases is flexible rather than rigid. The mere fact a non-parole period is within the range of other non-parole periods imposed for similar offending does not necessarily establish that there was an appropriate exercise of the sentencing discretion in the particular case. Similarly, the mere fact a non-parole period is outside the range does not necessarily establish that the exercise of the sentencing discretion in the particular case miscarried.

218 A sentencing range for comparable offences is merely one of the factors to be taken into account in deciding whether a sentence (including a minimum term) is manifestly excessive. A range of sentences customarily imposed is of significance for the purpose of ensuring broad consistency in the sentencing of offenders in broadly comparable cases. However, a sentencing range for comparable cases does not fix the range of a sound exercise of the sentencing discretion in a particular case.

219 When this court dismisses an appeal against sentence, and when it allows an appeal against sentence and resentences the offender, this court's decision on the sentencing outcome does not, of itself, fix the upper or lower limit of the range.

220 The discretion conferred on sentencing judges is, of course, of fundamental importance and this court may not substitute its opinion as to sentencing for that of the sentencing judge merely because it would have exercised the discretion in a different manner. See Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 [15] (Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne & Callinan JJ).

221 I have reviewed numerous cases in which this court has heard and determined appeals against sentence for murder since the commencement of the Criminal Law Amendment (Homicide) Act. I have taken into account the sentencing dispositions in Atherden v The State of Western Australia [2010] WASCA 33; Butler v The State of Western Australia [2010] WASCA 104; Austic v The State of Western Australia [2010] WASCA 110; Pedersen; The State of Western Australia v O'Kane [2011] WASCA 24; The State of Western Australia v Silich [2011] WASCA 135; (2011) 43 WAR 285; Cockram v The State of Western Australia [2011] WASCA 179; Wongawol v The State of Western Australia [2011] WASCA 222; (2011) 42 WAR 91; Johnston v The State of Western Australia [2012] WASCA 18; Goodwyn v The State of Western Australia [2013] WASCA 141; (2013) 45 WAR 328; Khan v The State of Western Australia [2013] WASCA 193; The State of Western Australia v Lee [2013] WASCA 246; Silva v The State of Western Australia [2013] WASCA 278; Prestidge v The State of Western Australia [2014] WASCA 16; Rosewood v The State of Western Australia [2014] WASCA 21; Stinson v The State of Western Australia [2014] WASCA 72; Mack v The State of Western Australia [2014] WASCA 207; Angliss v The State of Western Australia [2015] WASCA 8; The State of Western Australia v Smith [2015] WASCA 87; (2015) 250 A Crim R 468; Zwerus v The State of Western Australia [2015] WASCA 174; The State of Western Australia v Churchill [2015] WASCA 257; Crossland v The State of Western Australia [2016] WASCA 93; Corbett v The State of Western Australia [2016] WASCA 97; Taylor v The State of Western Australia [2016] WASCA 210; and McIntosh v The State of Western Australia [2017] WASCA 45. It is unnecessary to reproduce the relevant facts and circumstances or the sentences imposed in the previous cases. There are some comparable features between some of those cases, on the one hand, and the present case, on the other, but there are also distinguishing features.

222 The minimum term of 26 years imposed on the appellant in the present case is broadly consistent with the minimum terms imposed in other reasonably comparable cases. The minimum term is not materially inconsistent with minimum terms previously imposed for reasonably comparable offending or for offending of a greater degree of seriousness than the appellant's.

223 In my opinion, the murder committed by the appellant was a very serious example of offending of that kind. The appellant joined with Mr Marchesano in a plan to kill him. The killing was unprovoked. The appellant actually shot and killed the deceased. Later, the appellant participated in hiding or destroying evidence, and dismembering, burning and disposing of the deceased's body, for the purpose of endeavouring to avoid detection.

224 The appellant was, of course, entitled to proceed to trial. However, he was unable to claim the mitigation that a plea of guilty would have brought. The appellant has not demonstrated any remorse. He was not youthful or inexperienced for sentencing purposes. As I have mentioned, the appellant had a prior criminal record including for offences of violence. He was therefore not entitled to any mitigation on account of previous good character. However, the fact that the appellant had a prior criminal record and the fact that previous attempts to facilitate his rehabilitation had failed did not aggravate the seriousness of the current offending.

225 I am satisfied, after taking into account and evaluating all relevant facts and circumstances (including the trial judge's unchallenged findings of fact), and all relevant principles relating to the imposition of a minimum non-parole period and the factors (including the reasonably comparable cases) which his Honour was bound to take into account in fixing a minimum non-parole period, that the minimum term of 26 years was within the range open to his Honour on a proper exercise of his discretion. The length of the minimum non-parole period was not unreasonable or plainly unjust. In all the circumstances, the interests of justice did not require or permit the imposition of a lesser minimum non-parole period. Error in the exercise of his Honour's discretion should not be inferred from the sentencing outcome.

226 The ground of appeal fails. It did not have a reasonable prospect of success. Leave to appeal should therefore be refused.

228 MAZZA JA: These appeals must be dismissed for the reasons given by Buss P, with which I agree.