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[2017] WASCA 45
Court of Appeal (WA)
2017-03-13
Buss P, Mazza JA, Beech J, Jenkins J
Original judgment source is linked above.
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION : McINTOSH -v- THE STATE OF WESTERN AUSTRALIA [2017] WASCA 45
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Criminal law - Appeal against conviction - Appellant convicted after trial of murder - Whether the trial judge occasioned a miscarriage of justice by informing the jury of the effect of s 37A of the Sentencing Act 1995 (WA) in relation to the evidence of an accomplice - Whether the trial judge occasioned a miscarriage of justice by failing to direct the jury that the accomplice's previous plea of guilty to murder was not evidence admissible against the appellant
Criminal law - Appeal against sentence - Appellant sentenced to life imprisonment with a minimum nonparole period of 20 years - Whether the minimum nonparole period was manifestly excessive - Whether the sentence imposed on the appellant infringed the parity principle
Sentencing Act 1995 (WA), s 37A
Andelman v The Queen [2013] VSCA 25; (2013) 38 VR 659
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
Barnden v The State of Western Australia [2014] WASCA 161
Bou-Elias v The Queen (No 1) [2012] VSCA 61
Bugmy v The Queen [1990] HCA 18; (1990) 169 CLR 525
Burnett v The Queen (1994) 76 A Crim R 148
Butler v The State of Western Australia [2010] WASCA 104
Carney v The State of Western Australia [2010] WASCA 90; (2010) 201 A Crim R 537
Carr v The Queen [1988] HCA 47; (1988) 165 CLR 314
Cockram v The State of Western Australia [2011] WASCA 179
Connell v The Queen (No 6) (1994) 12 WAR 133
Corbett v The State of Western Australia [2016] WASCA 97
Cowell v The Queen (1985) 24 A Crim R 47
Crossland v The State of Western Australia [2016] WASCA 93
Deakin v The Queen [1984] HCA 31; (1984) 58 ALJR 367
Dunn v The Queen [2015] WASCA 126
Goodwyn v The State of Western Australia [2013] WASCA 141; (2013) 45 WAR 328
Hoy v The Queen [2002] WASCA 275
Johnston v The State of Western Australia [2012] WASCA 18
Khan v The State of Western Australia [2013] WASCA 193
Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79
Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665
Mack v The State of Western Australia [2014] WASCA 207
Napier v The State of Western Australia [2007] WASCA 248
Pedersen v The State of Western Australia [2010] WASCA 175
Power v The Queen [1974] HCA 26; (1974) 131 CLR 623
Power v The Queen [2014] VSCA 146; (2014) 43 VR 261
Prestidge v The State of Western Australia [2014] WASCA 16
R v Fountain [2001] VSCA 200; (2001) 124 A Crim 100
R v Fowler (1985) 39 SASR 440
R v Gallagher [1986] VicRp 25; [1986] VR 219
R v May [1984] 13 CCC (3d) 257
R v Moore (1956) 40 Cr App R 50
R v Ormond [2012] SASCFC 130
R v Windsor [1953] NZLR 83
Romeo v The Queen [1988] WAR 304
Rosewood v The State of Western Australia [2014] WASCA 21
RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620
Ruffin v The State of Western Australia [2015] WASCA 127
Silva v The State of Western Australia [2013] WASCA 278
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 Churchill [2015] WASCA 257
The State of Western Australia v Hall [2015] WASCSR 70
The State of Western Australia v Lee [2013] WASCA 246
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
Tully v The Queen [2006] HCA 56; (2006) 230 CLR 234
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 On 16 October 2015, the appellant was convicted, after a retrial in the Supreme Court before Jenkins J (the trial judge) and a jury, of the murder of Diana Lesley Matthews, contrary to s 279 of the Criminal Code (WA) (the Code).
3 On 21 December 2015, the trial judge sentenced the appellant to life imprisonment with a minimum non-parole period of 20 years. The sentence was backdated to 7 September 2013, when the appellant was taken into custody for the offence.
4 I would dismiss both of the appeals. My reasons are as follows.
The facts and circumstances of the offence as found by the trial judge
5 The facts and circumstances of the offence, as found by the trial judge in her sentencing remarks, are as follows.
6 The appellant and Rebecca Hall were jointly charged with the murder of Ms Matthews.
7 Prior to the appellant's original trial, Ms Hall pleaded guilty to murder. She gave evidence as a State witness at the appellant's original trial and his retrial.
8 Ms Hall's partner's sister was the appellant's partner.
9 Ms Matthews was a middle-aged woman who was known to both the appellant and Ms Hall. Ms Matthews was a drug dealer. The appellant, Ms Hall and their respective partners were drug users. Ms Matthews supplied them with drugs.
10 On 29 April 2011, the appellant and Ms Hall contacted Ms Matthews on several occasions with a view to purchasing drugs.
11 On the afternoon of 29 April 2011, when the appellant returned home from work, Ms Hall and her children were at the appellant's house. They were socialising with the appellant's partner. This was a common occurrence. At the appellant's house, the appellant and Ms Hall decided to meet with Ms Matthews to obtain drugs.
12 Ms Hall drove the appellant's Tarago van to a park in Baldivis. The appellant was a passenger. On 29 April 2011, at about 6.20 pm, they met Ms Matthews at the park. Ms Matthews sold or supplied the appellant and Ms Hall with methylamphetamine. During the negotiation of the transaction, the appellant and Ms Hall became aware that Ms Matthews had a much larger quantity of drugs and a large amount of money. After obtaining the methylamphetamine from Ms Matthews, the appellant and Ms Hall returned to the appellant's house.
13 Shortly afterwards, the appellant and Ms Hall decided to meet Ms Matthews again. At about 7.54 pm, Ms Hall telephoned Ms Matthews and arranged to meet her again at the Baldivis park. Ms Hall drove the appellant's Tarago van. The appellant was a passenger. At about 8.20 pm, they met Ms Matthews at the park. The appellant moved from the front to the back seat of the van. Ms Matthews sat in the front passenger seat. A number of other people came to the van and bought drugs from Ms Matthews.
14 The appellant and Ms Matthews negotiated a drug transaction. By this stage, the appellant, Ms Hall and Ms Matthews were alone in the Tarago van. Ms Hall drove the van for a short distance and stopped at a place where Ms Matthews would ordinarily have alighted and walked a short distance to a friend's home. However, a conversation took place between the appellant, Ms Hall and Ms Matthews. It was agreed that Ms Matthews would remain in the van. Ms Hall resumed driving. As she drove, the appellant reached forward from his position in the back seat, which was directly behind the front passenger seat, and strangled Ms Matthews. It was probable that he had placed a piece of wire across her neck. The appellant told Ms Hall to keep driving. She did so.
15 Ms Matthews struggled against the appellant's efforts to strangle her. She attempted to remove the wire. However, she failed and, shortly afterwards, lost consciousness. The appellant and Ms Hall thought she was dead.
16 Ms Hall drove the van to the Rockingham Regional Memorial Cemetery. She stopped at the end of a road, a short distance from a reservoir. The appellant asked Ms Hall to help him remove Ms Matthews' body from the van. She did so. The appellant and Ms Hall placed Ms Matthews in the reservoir, a short distance from the water's edge.
17 The appellant and Ms Hall got into the van and Ms Hall drove to the appellant's house. They shared Ms Matthews' drugs and money. The appellant went into his shed at the back of the house and burned some of Ms Matthews' property.
18 The appellant lent Ms Hall another vehicle so she could collect her partner from work. The appellant wanted to ensure there were no obvious signs in the Tarago van of Ms Matthews' murder. Before Ms Hall departed, the appellant gave her a plastic bag containing the burned remains of Ms Matthews' property. He told her to get rid of the bag. Ms Hall took the bag and threw it out of the window as she drove to collect her partner.
19 On 29 April 2011, at about 11.30 pm, members of the public found Ms Matthews' body in the reservoir. By that time, her airways were fully submerged in the water. She was dead.
20 A post-mortem examination revealed a linear mark on the front of Ms Matthews' neck. Beneath the mark there were fractures on the right and left superior horns of the thyroid cartilage of the larynx, and extensive soft-tissue haemorrhage. She had a very high level of methylamphetamine in her blood. The drug may have contributed to her death.
21 The post-mortem examination also revealed that the strangulation of Ms Matthews caused oxygen deprivation. This resulted in brain damage. It was uncertain whether Ms Matthews would have been able to survive the damage. Dr Victoria Fabian, a neuropathologist, said changes she saw in Ms Matthews' brain indicated that Ms Matthews would have survived for at least four hours after the appellant strangled her. However, other objective evidence established that Ms Matthews did not survive for that period. Dr Fabian revised her opinion and said that Ms Matthews had survived, although with irreversible brain damage, for about three hours and 15 minutes or three hours and 20 minutes after the appellant strangled her. So, Ms Matthews was alive (but unconscious) when the appellant and Ms Hall dumped her body in the reservoir.
(a) First, Ms Matthews had died after being in the reservoir for about three hours. At that time, she moved and her airways became fully submerged. The level of injury and the unconsciousness inflicted upon her earlier by the appellant meant she was unable to raise her airways above the water level. As a result, she drowned.
(b) Secondly, Ms Matthews had died from the injuries she suffered when the appellant strangled her and, as she died, her body moved and her airways became fully submerged.
Ms Hall's plea of guilty and her cooperation with the law enforcement authorities
23 Police investigations revealed that the appellant and Ms Hall were the last known people to have seen Ms Matthews alive.
24 In May 2011, the appellant gave a written statement to the police to the effect that, on the evening in question, he and Ms Hall had bought drugs from Ms Matthews and then 'dropped her off in a park' and went home. Ms Hall gave a similar account to the police. In October 2011, when the appellant was arrested and interviewed as a suspect, he repeated in substance his earlier written statement.
25 On 5 September 2013, Ms Hall contacted the police and revealed what she asserted had actually happened in relation to Ms Matthews' death. She gave the police a written statement and then, at the request of the police, participated in conversations with the appellant while carrying a concealed recording device. During the recorded conversations, the appellant made a number of admissions in relation to Ms Matthews' death.
26 The police interviewed the appellant again. He denied any wrongdoing despite being told that Ms Hall had made a statement implicating him in the murder.
27 On 7 September 2013, the appellant was charged with Ms Matthews' murder. Ms Hall was also charged with murder on the basis that she had aided the appellant. A joint trial was listed to begin on 20 April 2015.
28 However, on 12 February 2015, Ms Hall pleaded guilty to Ms Matthews' murder. On 17 March 2015, Ms Hall undertook to the law enforcement authorities that she would cooperate with the office of the Director of Public Prosecutions (WA) (DPP) in the prosecution of the appellant and would give evidence against him as a State witness. On 16 April 2015, the trial judge sentenced Ms Hall to a term of 11 years' imprisonment, with eligibility for parole, for Ms Matthews' murder. Her Honour said in sentencing Ms Hall:
Rebecca Anne Hall, for the murder of Diana Lesley Matthews, I sentence you to 11 years imprisonment. As I have said, that means that you will become eligible for parole after you have served 9 years of that sentence. I backdate your sentence to commence on the day you went into custody which was 5 September 2013.
I must now warn you of the consequences should you breach your undertaking of 17 March 2015. If you fail wholly or partly to fulfil the undertaking the court may recall your sentence and impose a sentence based on the full sentence which, as I have said, is one of life imprisonment with a minimum term of 13 years.
You have received a very lenient sentence for your offence. You will realise ... as counsel [has] said, that no other person sentenced for murder under the current sentencing regime has received a fixed term, let alone one as low as 11 years. But this lenient term has been imposed on you because of your undertaking to give evidence against [the appellant] and to cooperate with the DPP in that prosecution. If you fail to comply with your undertaking the court is unlikely to hesitate to deprive you of that leniency. It is unlikely to hesitate to impose the full term.
See The State of Western Australia v Hall [2015] WASCSR 70 [65] - [67].
29 Between 20 April 2015 and 7 May 2015, the appellant was tried for Ms Matthews' murder, but the jury was unable to agree upon a verdict. After a retrial in October 2015, the appellant was convicted. Ms Hall gave evidence as a State witness at both trials.
30 At the retrial, the appellant gave evidence. His case was that, although he was present when Ms Matthews was strangled, it was Ms Hall who had strangled her. He did not touch Ms Matthews. The appellant did not intervene while Ms Hall was strangling her because he was 'in shock' while it was happening.
Appeal against conviction: the grounds of appeal
31 The appellant relies on two grounds in his appeal against conviction.
32 Ground 1 alleges that the trial judge occasioned a miscarriage of justice by informing the jury of the effect of s 37A of the Sentencing Act 1995 (WA) in relation to the evidence of Ms Hall.
33 The appellant's complaints, in the context of ground 1, are set out in three particulars:
(a) Particular 1.1 states that it was 'unnecessary for the jury to be informed of the possible sanctions Ms Hall faced should she testify in a manner inconsistent with the statements she had provided to police'.
(b) Particular 1.2 states that, by informing the jury of the requirement that Ms Hall give 'truthful evidence', her Honour 'effectively gave the imprimatur of her judicial office to the proposition that Ms Hall's evidence at the [retrial] was truthful and reliable'.
(c) Particular 1.3 states that the jury, being aware that the appellant's trial was a retrial and that Ms Hall had testified at the original trial, 'may have considered that Ms Hall, in not having been dealt with in the manner referred to following [the original] trial, was giving a version of events regarding the appellant's culpability that was in the Court's view truthful and reliable'.
34 Ground 2 alleges that her Honour occasioned a miscarriage of justice by failing to direct the jury that Ms Hall's plea of guilty to the charge of murder was not evidence that was admissible against the appellant.
35 On 24 January 2016, Mazza JA granted leave to appeal on ground 2 and referred the application for leave to appeal on ground 1 to the hearing of the appeal.
Appeal against conviction: ground 1: s 37A of the Sentencing Act
36 Section 37A(1) of the Sentencing Act provides:
If -
(a) a court reduces the sentence it would otherwise have imposed on an offender for an offence (the full sentence) because the offender undertakes to assist law enforcement authorities; and
(b) the offender subsequently fails wholly or partly to fulfil the undertaking,
the court may recall the order imposing the sentence (the reduced sentence) and impose a sentence based on the full sentence but taking into account the extent to which the reduced sentence has taken effect and the extent to which the offender has complied with any orders made under it.
Appeal against conviction: ground 1: the trial judge's directions to the jury about s 37A of the Sentencing Act
37 At the retrial, defence counsel said in her opening statement:
Rebecca Hall walked into a police station and she told the police that [the appellant] strangled Diane Matthews. She gave the police a version of events that depicted him as the killer.
And then she was able to reach an agreement with the prosecution where she would be sentenced on her version of events. Namely, she wasn't the person who did the strangling. She would give evidence incriminating [the appellant]. Indeed, if she didn't give evidence incriminating [the appellant] she could be brought back to the court and resentenced.
And for her efforts in providing the version of events that described [the appellant] as the killer, she was given a substantial reduction in the sentence she otherwise would have received. You'll hear more about that down the track (ts 1382).
38 After the State had called some of its witnesses, but before Ms Hall gave evidence, defence counsel raised with the trial judge the issue of Ms Hall's cooperation with the authorities. The following exchange occurred between her Honour, the prosecutor and defence counsel in the absence of the jury:
(a) Defence counsel said she intended, in her cross-examination of Ms Hall, to put to Ms Hall the circumstances relating to the trial judge's sentencing of Ms Hall on 16 April 2015; in particular, 'the matters that [Ms Hall] was told by your Honour in relation to the sentence she received and the consequences [if she failed] to cooperate' (ts 1614).
(b) Defence counsel said she wanted to put to Ms Hall that, when she was sentenced, her Honour told Ms Hall that she had received 'a very lenient sentence' and that, under the current sentencing regime, no other person sentenced for murder had received 'a fixed term, let alone one as low as 11 years' (ts 1615).
(c) The prosecutor did not object to defence counsel putting to Ms Hall that her Honour had told Ms Hall that she had received 'a very lenient sentence', or the consequences for Ms Hall if she failed to comply with her undertaking to cooperate with the authorities. However, the prosecutor objected to defence counsel putting to Ms Hall her Honour's comment that under the current sentencing regime, no other person sentenced for murder had received 'a fixed term, let alone one as low as 11 years' (ts 1618 - 1619).
(d) Her Honour decided that defence counsel should be allowed to put to Ms Hall all of the matters. Her Honour said in relation to the matter in dispute:
I think it has some relevance to her state of mind. I will decide after I've heard the evidence, as it's come out, what then needs to be told to the jury, if anything, to explain the comment (ts 1619).
39 Shortly after Ms Hall commenced her evidence-in-chief, the following exchange occurred between the prosecutor and Ms Hall:
You're currently a serving sentenced prisoner?---Yes.
And you're serving that sentence for murder?---Yes.
You pleaded guilty to that offence in April of this year?---Yes.
And you were sentenced on 16 April [by] her Honour for that offence?---Yep.
You're serving a sentence of 11 years with a minimum of nine years?---Yes (ts 1621).
40 In cross-examination, Ms Hall said, in effect, she understood that, by pleading guilty and undertaking to cooperate with the law enforcement authorities, she would receive a lower sentence. She also said, in effect, she understood that if she did not give evidence at the retrial in accordance with the witness statements dated 5 September 2013 and 11 February 2015, which she had given to the police, she could be brought back to court and resentenced (ts 1824 - 1831). The following sequence of questions and answers occurred towards the end of the cross-examination:
And you understood that the way in which you could get a sentence of life imprisonment would be if you failed to truthfully give evidence at this trial, or other proceeding, which evidence is [in] accordance with your witness statement[s] dated 5 September 2013 and 11 February 2015?---Yeah.
And the consequences of what you told the police was that you proceeded, in terms of your dealings with both the police and the DPP and then the court, on a version of events that involved [the appellant] being the person who strangled Ms Matthews, correct?---Yes.
But the reality was, Ms Hall, that on that ... Friday, 29 April you were the person who strangled Ms Matthews, weren't you?---No (ts 1831).
41 In re-examination, the following interaction occurred between the prosecutor and Ms Hall:
[D]id your lawyers ever tell you that the DPP were doing you a favour?---No.
When ... you came before the court and pleaded guilty, did you know what you were going to be sentenced to?---No.
Did your lawyers tell you that you were definitely going to get a finite sentence?---No.
Did you know until her Honour told you on 16 April that you were going to get a finite sentence?---No. ... I thought I was getting life.
And when you did enter that plea of guilty, was it at that time that you signed an agreement, or an undertaking, to truthfully give evidence in accordance with your witness statement?---Yeah.
[W]hen you've come to give evidence in these proceedings and the last proceedings, ... what's the main thing you've been trying to do?---Tell the truth.
Have you been particularly conscious of the witness statement and the need to stick to that---No (ts 1832 - 1833).
42 When Ms Hall had completed her evidence and withdrawn, the trial judge gave the jury the following directions before the next witness was called:
You've heard that Ms Hall was sentenced on the basis of a version of events that essentially included that it was [the appellant] who strangled Ms Matthews. You've also heard that Ms Hall received a lesser sentence than she might otherwise have received because she had cooperated with the police in the prosecution and she had undertaken to give evidence against [the appellant] in a way which was consistent with the same version of events she had given to the police.
You've also heard that she knows that, and she's been told that, if she does not or did not give evidence in accordance with that version of events then she may be brought back to court and re-sentenced and receive a longer sentence. Now, it's important that you hear that evidence, because it's important for you to assess her particular situation in deciding whether you believe her evidence. So it's part of the background material for you to know how it is that she's come along to court to give evidence yesterday and today.
However, I want to make it clear to you that you are the sole judges of the facts in this case. The fact that she was sentenced on a particular basis, the fact that a certain version of events was put to the court for the purpose of sentencing should not in any way influence your view as to whether that version of events is truthful or not, because you are here to decide what the facts are.
So you must not reason that just because the State might have put a certain event or events to the court when Ms Hall was sentenced and just because I sentenced her on that version of events, it doesn't make that version of events true, and you must not reason that it does. It's your job to listen carefully to the evidence both of Ms Hall and all other evidence to decide whether Ms Hall's version of events is correct or not, is truthful or not.
It would be quite wrong of you to reason that just because the State had accepted that version of events, or the police accepted that version of events, or I sentenced [Ms Hall] on that version of events that therefore that version must be true. As I've said, that's because you are the sole judges of the facts in this case.
It is relevant for you to hear that evidence, as I said, because it's part of the background of the case. I'm sure you'll hear submissions from counsel as to whether the fact that Ms Hall was sentenced on a particular version of events gives her a motive to stick with that version of events, even though it may be false. I will give you directions on the law in more detail at the end of the case about that issue. But I want to emphasise to you now that the facts are entirely a matter for you to decide and you alone.
I also wanted to explain to you that it is the usual procedure that if an offender is to give evidence against another person charged with the same offence, that the offender who is to give evidence is sentenced for that offence before they give their evidence. That's so everybody knows what sentence the witness has received.
It's desirable that when someone like Ms Hall comes along to give her evidence as an offender that the jury know what has happened in respect to the offence she committed and the sentence she has received for that offence. Because again that is part of the background to help you assess the truthfulness and reliability of her evidence.
It is also the normal procedure that when such a person is sentenced that there is a statement of facts which [is] put before the court for the purpose of sentencing. And ... the offender, in this case Ms Hall, is sentenced on that version of events. You shouldn't form any view that this is a procedure adopted particularly for Ms Hall or for this case. That is what generally occurs.
It's also the usual situation that when an offender has confessed to a crime, cooperated with the police and undertaken to give evidence against a co-accused that they will receive a lower sentence than an offender who has not done those things. It's ultimately up to the sentencing judge to decide what the sentence is, but it is the law that such an offender will usually receive a lesser penalty.
In that respect, when I sentenced Ms Hall I did not make a judgment, as you are being called to do, as to whether Ms Hall was telling the truth or not. It would be quite wrong of you to proceed on the basis that I have formed such a judgment and that it affects your decision in any way. As I've said, you are the sole judges of the facts and you must not make your decision on the basis of any other person's views of the facts than your own.
Finally, members of the jury, I wanted to say in this respect that you heard something of what I said to Ms Hall. One of the things I said to her was that ... at that point no other person sentenced to ... murder under the current sentencing regime had received a fixed term, let alone one as low as 11 years. ...
What I was saying was that at that point it was my view that no one since the current sentencing regime came into effect had received a fixed term. The current sentencing regime has been in effect since 2008 (ts 1838 - 1840).
43 After giving those directions, her Honour inquired of the prosecutor and defence counsel whether they thought she 'should add [anything] about that issue at this point' (ts 1840). Defence counsel responded, 'No' (ts 1840). The prosecutor said, 'Not at this point' (ts 1841).
44 Both the prosecutor and defence counsel, in their closing addresses, referred to the reduction in Ms Hall's sentence because of her undertaking to the law enforcement authorities that she would cooperate with the office of the DPP in the prosecution of the appellant and would give evidence against him as a State witness (ts 2554 - 2555, 2559 - 2560, 2578, 2623).
45 In her summing up, the trial judge gave the jury these directions:
(a) The jury was the sole judge of the facts. It was the jury's duty, subject to her Honour's directions on the law, to decide what facts had been proven (ts 2627).
(b) Ms Hall was 'an important witness for the State' and, unless the jury accepted 'the essential truthfulness and reliability of [her] evidence ... [the jury was] not going to be able to convict [the appellant]' (ts 2653).
(c) As to Ms Hall's status as an accomplice, and the reduction in her sentence on account of her undertaking to cooperate with the office of the DPP in the prosecution of the appellant and to give evidence against him as a State witness:
Ms Hall was sentenced on the basis that she would give evidence truthfully to that effect for the State at this trial. Before she was sentenced Ms Hall had undertaken that she would give evidence truthfully to that effect.
Now, these matters were taken into account in order to reduce the sentence that Ms Hall would have otherwise received for the offence of murder. She did not receive any special treatment in that respect. The law is that when an offender cooperates with the prosecution and undertakes to give evidence against a co-accused they should receive a reduced sentence. It is up to the sentencing judge to decide what that sentence is.
For Ms Hall's promise to give evidence against [the appellant] her sentence was reduced from one of life imprisonment with a minimum term of 13 years' imprisonment to serve before she would become eligible for parole to a fixed term of 11 years' imprisonment with a minimum term of nine years to be served before she will become eligible for parole.
When sentencing [Ms Hall] I made some comment to her about receiving a lenient sentence, but that comment really is not important. What is important from your perspective is what I have just said and what Ms Hall understood about the sentencing process, what she understood about the benefit she received from undertaking to give evidence in the trial, and what she understood her obligation was in that regard.
... [T]he law provides that if an offender is sentenced for an offence and they get a lesser sentence than they would have otherwise got because they have agreed to assist the prosecution in a subsequent trial, and if they fail to assist the prosecution in a subsequent trial by giving truthful evidence in terms that they undertook to give then they can be brought back to court and they can be re-sentenced and they can receive a higher sentence.
Ms Hall is aware of this law. Consequently, when she gave evidence in this trial she believed that if she did not give truthful evidence consistent with the statements she had provided to the police in September 2013 and afterwards which implicated [the appellant] in the murder of Ms Matthews she may be brought back to court and have her sentence increased. She therefore has an obvious self-interest in maintaining the account that she gave to the police, even if it is a false account.
Consequently it is important that you scrutinise her evidence with special care, and I direct you to do that. The fact that she has a self-interest in giving evidence in this trial consistent with her earlier statements is not a reason by itself for you to reject her evidence, but it is a reason for you to very carefully scrutinise her evidence and to consider it in light of all the other evidence, and in particular what you know about her general reliability and credibility and what you know about the circumstances of the death of Ms Matthews from other evidence which you accept as truthful and reliable. You should scrutinise her evidence in that way before you decide whether you are prepared to rely upon Ms Hall's evidence.
You've heard very full submissions by both counsel about Ms Hall's reliability and credibility. I'm not going to repeat them. Clearly you will consider those submissions and the evidence relating to them when you retire to consider your verdict.
Importantly, you should also consider whether there is any independent evidence which tends to implicate [the appellant] in this crime. That is, other evidence which supports or confirms the evidence of Ms Hall. This is because you might not want to accept the evidence of Ms Hall without the existence of independent evidence which supports her evidence.
...
So you should weigh up all that evidence and counsel's submissions in respect to it when deciding whether you accept Ms Hall's evidence. Ultimately, as I have said, it is a matter of fact for you, members of the jury, as to whether you accept Ms Hall's evidence, whether it is with or without supporting other evidence. However, you should only accept her evidence if, after having scrutinised it with great care, having considered matters relating to its reliability, and taking into account the self-interest involved in it, you are satisfied beyond reasonable doubt as to its truth and its accuracy (ts 2654 - 2657).
(d) In the course of summarising the State's case, her Honour said:
The State case relies significantly upon the evidence of Ms Hall. The State says that you can accept her evidence because she voluntarily went to the police and confessed her involvement in ... this offence.
It says she has pleaded guilty to murder and she has received a substantial sentence of imprisonment for that offence. She has received a lesser sentence because of her cooperation with the police and the prosecuting authorities, but that is only on the basis that she gave truthful evidence to you. The State says that she has been essentially consistent and truthful in ... her account of what happened since she confessed to her involvement in September 2013.
The State says that based on all the evidence, including the expert medical evidence, you should be satisfied beyond reasonable doubt that [the appellant] strangled Ms Matthews with a piece of wire from behind in the Tarago (ts 2677 - 2678).
(e) In the course of summarising the appellant's case, her Honour said:
[The appellant] says that Ms Hall has a lot of self-interest in giving the [allegedly] false evidence that she gave against him. He says that it is evidence that she has falsely fabricated in order to get a reduced sentence and to reduce her liability for Ms Matthews' death.
Further, she knows that if she did not tell the same story she told the police to you that she would be likely to be resentenced and receive a longer sentence. So this is a compelling motive for her to stick to the story which she told to the police in September 2013 even though [the appellant] says it is false.
He says that her evidence was full of inconsistencies. He says that a poor memory cannot be a valid excuse for all of her inconsistencies. ...
In any event [the appellant] said regardless of his evidence, the State case falls on its own because it relies on Ms Hall's evidence. He says that she is an inherently untruthful and unreliable witness with more than one motive to lie and to implicate him in the commission of the murder of Ms Matthews. So even if you did not accept his evidence, you should be unable to find beyond reasonable doubt the facts required to prove his guilt.
He says you should not be satisfied beyond reasonable doubt that he strangled Ms Matthews or that he assisted to put her into the lake, and therefore he is not guilty of any offence (ts 2682).
(f) In conclusion, her Honour reminded the jury that '[a]s I have said to you on numerous occasions now, the facts are your responsibility' (ts 2683).
46 Defence counsel did not seek any redirection or further direction in relation to any of the matters now complained about by the appellant in ground 1.
Appeal against conviction: ground 1: the appellant's submissions
47 Counsel for the appellant's written submissions on ground 1 merely repeated, in substance, the assertions made in the particulars to the ground.
48 At the hearing of the appeal, counsel contended that the trial judge's directions had the effect of 'bolstering [Ms Hall's] credibility in the eyes of the jury', so that there was a real risk the jury would have understood from her Honour's directions that 'what [Ms Hall was] saying must be truthful, as opposed to [Ms Hall] simply just giving evidence for the State' (appeal ts 16). Counsel added, 'that's where we say the issue [raised by ground 1] lies' (appeal ts 16).
49 Later in his submissions at the hearing, counsel for the appellant said the jury at the retrial was aware that Ms Hall had not been 'dealt with', pursuant to s 37A of the Sentencing Act, after the original trial, and there was a 'danger' that her Honour's directions would have conveyed to the jury that, 'in her Honour's eyes [Ms Hall's account of events] was truthful; otherwise, she would have been resentenced' (appeal ts 18 - 19).
Appeal against conviction: ground 1: its merits
50 In Hoy v The Queen [2002] WASCA 275, the appellants were convicted, after a trial before a judge and jury, of wilful murder. Each of the appellants appealed against conviction. The State's case relied entirely upon the evidence of a witness, Davis, who was an accomplice. Davis had pleaded guilty to wilful murder and been given a lenient sentence because he had undertaken to cooperate with the law enforcement authorities and give evidence as a State witness against the appellants at their trial. The trial judge directed the jury that the leniency extended to Davis was dependent upon his continuing to provide cooperation to the authorities by giving truthful evidence which would implicate the other offenders in the commission of the crime. However, his Honour did not make the point that under s 37A of the Sentencing Act an offender who reneges on a promise to assist the authorities may be resentenced.
51 On appeal, Miller J (Anderson J agreeing & Wheeler J agreeing generally) said that a direction in relation to the operation of s 37A 'is often given in circumstances where (as here) the accomplice has been sentenced to a more lenient sentence than he would otherwise have received by reason of the cooperation he has undertaken to give' [191]. A little later, his Honour elaborated:
No authority was cited before the Court to suggest that a trial Judge must always in cases such as this inform a jury of the provisions of s 37A of the Sentencing Act. Many Judges do so and, in my view, it is desirable to do so. It is relevant for a jury to know that the person who has received a lenient sentence in return [for] cooperation by way of giving evidence against other offenders is obliged to give truthful evidence in that regard, failing which he may be brought back and be sentenced. It would, however, in my view, be going too far to say that it is mandatory for a trial Judge to give that direction. In the present case it might well have been given, but it was not. That was a matter in the discretion of the trial Judge and for whatever reason his Honour was not inclined to extend the direction to incorporate that point. However, I am unable to conclude that there was any error of law on the part of the trial Judge in failing to direct the jury about the provisions of s 37A of the Sentencing Act. Nor could it be said that there was any miscarriage of justice occasioned by his Honour's failure to do so. Indeed, the [accomplice] direction that was given in relation to Davis could not have been stronger [194]. (original emphasis)
52 As to particular 1.1 of ground 1, counsel for the appellant merely asserted, without reasoned argument, that it was 'unnecessary for the jury to be informed of the possible sanctions Ms Hall faced should she testify in a manner inconsistent with the statements she had provided to police'.
53 In the present case, the trial judge emphasised to the jury that Ms Hall was 'an important witness for the State' and that, unless the jury accepted 'the essential truthfulness and reliability' of her evidence, the jury would not be able to convict the appellant of murder or the alternative charge of manslaughter (ts 2653).
54 It was in the interests of justice (including ensuring a fair trial for the appellant) that her Honour remind the jury that Ms Hall had 'an obvious self-interest in maintaining the account [of events] that she gave to the police, even if it is a false account' (ts 2655).
55 The court's power to recall the order imposing Ms Hall's sentence and to substitute a higher sentence, pursuant to s 37A of the Sentencing Act, if Ms Hall failed wholly or partly to comply with the undertaking she had given to assist the law enforcement authorities (including by giving truthful evidence at the appellant's trial), was, as her Honour directed the jury, a reason to 'scrutinise her evidence with special care' and to 'very carefully scrutinise her evidence', in the context of all the other evidence (including the evidence as to her general reliability and credibility), in determining whether the jury was prepared to rely upon her evidence (ts 2655). By drawing the jury's attention to 'the possible sanctions Ms Hall faced' under s 37A, and to Ms Hall's self-interest in retaining the benefit of a reduced or lenient sentence, her Honour assisted the jury's understanding of a relevant and important circumstance and of the significance of that circumstance in assessing Ms Hall's truthfulness and reliability. Her Honour's direction was appropriate and in the interests of justice (including ensuring a fair trial for the appellant).
57 As to particular 1.2 of ground 1, the particular asserts that, by informing the jury of the requirement that Ms Hall give 'truthful evidence', the trial judge 'effectively gave the imprimatur of her judicial office to the proposition that Ms Hall's evidence at the [retrial] was truthful and reliable'.
59 First, as her Honour explained to the jury, if Ms Hall failed to assist the State 'by giving truthful evidence' in the terms she undertook to give, she could be 'brought back to court' and 'resentenced' and she could receive a 'higher sentence' (ts 2655). Secondly, in directing the jury as to the importance of assessing Ms Hall's truthfulness and reliability, her Honour explained that Ms Hall was obliged, having been given a reduced sentence, to give truthful evidence in accordance with her undertaking (ts 2655). Thirdly, her Honour reminded the jury that Ms Hall was aware that she could be brought back to court and could receive a higher sentence if she did not comply with her undertaking and, therefore, Ms Hall had a self-interest in maintaining what she had told the police in her witness statements, even if it was untrue (ts 2655). Fourthly, her Honour instructed the jury, on numerous occasions throughout the trial, that they were the judges of the facts, including the judges of Ms Hall's truthfulness and reliability (ts 2627, 2683). Fifthly, immediately after Ms Hall gave evidence, her Honour stressed to the jury the following. When she sentenced Ms Hall, her Honour was not making a judgment, as the jury was required to do, as to whether Ms Hall was telling the truth or not. It would be wrong for the jury to proceed on the basis that her Honour had formed a judgment as to whether Ms Hall was telling the truth or not. The fact that Ms Hall was sentenced on a particular basis should not in any way influence the jury's view as to whether her version of events was truthful or not. It was the jury's function to decide on the true version of events. The jury must not reason that because her Honour sentenced Ms Hall on a particular version of events, that version must be true. It was the jury's responsibility to evaluate the evidence and decide whether Ms Hall's version of events was 'correct or not ... truthful or not' (ts 1838 - 1840). Sixthly, her Honour gave an accomplice direction in relation to Ms Hall and her evidence, including a direction that the jury should look for independent evidence which tended to implicate the appellant; that is, the jury should look for other evidence which supported or confirmed Ms Hall's evidence. Seventhly, there was otherwise no hidden danger in relation to Ms Hall's evidence which the jury might have been unable to appreciate without the assistance of an instruction or a warning from her Honour. Ms Hall had no attractive features as a witness. There were not any other circumstances which gave rise to a risk that the jury might overlook Ms Hall's status as a convicted murderer who, on the appellant's case, had her own interests to serve.
60 I am satisfied that the jurors would have been in no doubt that it was for them, and them alone, to assess Ms Hall's truthfulness and reliability by reference to all of the evidence at the retrial. There is no basis in the trial record for the submission that her Honour 'effectively gave the imprimatur of her judicial office to the proposition that Ms Hall's evidence at the [retrial] was truthful and reliable'. Her Honour's approach and directions ensured that the appellant would receive a fair trial.
62 As to particular 1.3 of ground 1, the particular asserts that the jury, being aware that the appellant's trial was a retrial and that Ms Hall had testified at the original trial, 'may have considered that Ms Hall, in not having been dealt with in the manner referred to following [the original] trial, was giving a version of events regarding the appellant's culpability that was in the Court's view truthful and reliable'.
63 At the retrial, defence counsel (who was also defence counsel at the original trial) requested the trial judge to inform the jury that there had been a previous trial (ts 1338).
64 Her Honour instructed the jury that there had been a previous trial and that the trial had not resulted in a conclusion or a verdict. Her Honour reiterated that it was for the jury at the retrial to judge the facts on the basis of the evidence adduced at the retrial. The appellant was presumed to be innocent unless the evidence adduced at the retrial proved his guilt beyond reasonable doubt (ts 1350 - 1351).
65 Particular 1.3 involves speculation, without any reasonable grounds, as to what the jury may have thought about Ms Hall and her evidence upon being informed that there had been a previous trial which had not resulted in a conclusion or a verdict.
66 It is fanciful, in the context of the trial judge's directions to the jury at the conclusion of Ms Hall's evidence and during her Honour's summing up, to suggest that the jury may have considered that because Ms Hall had not been dealt with after the original trial, pursuant to s 37A of the Sentencing Act, she was giving an account of the events with respect to Ms Matthews' death that was, in her Honour's view, truthful and reliable.
Appeal against conviction: ground 2: the references by the prosecutor and defence counsel at the retrial to Ms Hall's plea of guilty
69 At the retrial, both the prosecutor and defence counsel referred, in their opening statements, to Ms Hall's plea of guilty to Ms Matthews' murder (ts 1368, 1382).
70 The prosecutor referred to Ms Hall's plea of guilty in her examination-in-chief (ts 1621, 1679) and defence counsel referred to her plea of guilty in cross-examination (ts 1824 - 1825).
71 The prosecutor made the following comments in her closing address:
Now, I'm not vouching for [Ms] Hall's character here. She is a convicted murderer. You heard that. She's serving a long sentence for that offence. No one is pretending to you that she's a good person, that she was a good person, or even now is one. There's no description for her conduct other than it was deplorable on that night.
But she has, however belatedly, admitted what she did. She has pleaded guilty, and for what it's worth, she has tried to make such amends as she could. And as I said, she is paying the price for her crime.
Now, the defence will say to you she paid a lesser price for that crime than she would have because she came along and gave evidence. And I'll come back to that. It's true. She is serving a lesser amount of time than she would have otherwise.
But what I'm saying to you is that in this case you can regard her as a truthful and credible witness, not only because of how she presented in the witness box, but because the other evidence in the trial confirms what she says (ts 2525).
72 Later in her closing address, the prosecutor told the jury:
So the sequence was she confessed, made statements, gave an undertaking to give truthful evidence in accordance with those statements, she pleaded guilty to what she was charged with, she didn't get any favours, and she didn't know what she was going to get before she was sentenced. She hoped that she'd get a finite term but she knew there was a chance that she'd get life. And she knows that she'd get life if she didn't do what she said she was going to do. None of that, in my submission to you, is an incentive to lie (ts 2559 - 2560).
73 Defence counsel made these comments in her closing address:
But let's have a think about what [Ms] Hall's story actually was by the time she walked out of that witness box. [Ms] Hall came to court, as you know, because she provided an undertaking that she would - and it's important that you remember this - truthfully give evidence at a trial such as this, which evidence is in accordance with her witness statements dated 5 September 2013 and 11 February 2015.
So the 5 September 2013 was her very truthful statement. This is the one she says she told the truth in. So she's agreed to tell the truth and to give evidence in accordance with one of the two statements, being that very truthful statement. What do you do if the truth and the witness statement are not the same thing? How do you comply with your undertaking if you can't both tell the truth and give evidence in accordance with those witness statements?
And I'd suggest to you, for some reasons I'm going to take you through in a moment, that was the dilemma that poor [Ms] Hall faced when she walked into this courtroom. Because [Ms] Hall knew that if she failed to comply with her undertaking she could be resentenced, and that very lenient sentence given to her could be taken away, and something not so very lenient could be imposed on her (ts 2578).
Appeal against conviction: ground 2: the references by the trial judge at the retrial to Ms Hall's plea of guilty
74 At the retrial, the trial judge referred in her summing up to Ms Hall's plea of guilty.
The evidence is that in September 2013, Ms Hall walked into a police station and confessed to the police that she was present when she said [the appellant] strangled Ms Matthews, and that she then helped [the appellant] put Ms Matthews into the reservoir.
She then agreed to go and speak to [the appellant] whilst she was carrying a recording device, and she did so. The recorded conversation is in evidence for you to consider. After she did that Ms Hall was charged with and pleaded guilty to the murder of Ms Matthews. She was sentenced for that crime. She was sentenced on the basis that although she was present when [the appellant] strangled Ms Matthews she personally did not strangle her. She was sentenced on the basis that she then drove to the reservoir and that she assisted [the appellant] to put the deceased into the water.
Ms Hall was sentenced on the basis that she would give evidence truthfully to that effect for the State at this trial. Before she was sentenced Ms Hall had undertaken that she would give evidence truthfully to that effect.
Now, these matters were taken into account in order to reduce the sentence that Ms Hall would have otherwise received for the offence of murder. She did not receive any special treatment in that respect. The law is that when an offender cooperates with the prosecution and undertakes to give evidence against a co-accused they should receive a reduced sentence. It is up to the sentencing judge to decide what that sentence is (ts 2654).
The State case relies significantly upon the evidence of Ms Hall. The State says that you can accept her evidence because she voluntarily went to the police and confessed her involvement in ... this offence.
It says she has pleaded guilty to murder and she has received a substantial sentence of imprisonment for that offence. She has received a lesser sentence because of her cooperation with the police and the prosecuting authorities, but that is only on the basis that she gave truthful evidence to you. The State says that she has been essentially consistent and truthful in ... her account of what happened since she confessed to her involvement in September 2013.
The State says that based on all the evidence, including the expert medical evidence, you should be satisfied beyond reasonable doubt that [the appellant] strangled Ms Matthews with a piece of wire from behind in the Tarago (ts 2677 - 2678).
Appeal against conviction: ground 2: the appellant's submissions
77 Counsel for the appellant submitted that, although the trial judge gave an accomplice warning to the jury in relation to Ms Hall and her evidence, that warning did not 'go towards how the jury needed to consider her plea of guilty'.
78 According to counsel, her Honour was bound to direct the jury that 'Ms Hall's plea of guilty was not admissible against the appellant in proof of the fact that the appellant had been a party to the alleged offence'. It was argued that a direction to that effect was required to avoid the risk of the jury using the plea impermissibly.
Appeal against conviction: ground 2: its merits
79 A judge is bound to give an instruction or a warning to the jury if, in the circumstances of the particular case, the instruction or the warning is necessary to avoid a perceptible risk of a miscarriage of justice. See Carr v The Queen [1988] HCA 47; (1988) 165 CLR 314, 324 - 325 (Brennan J); Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79, 86 (Brennan, Dawson & Toohey JJ); Tully v The Queen [2006] HCA 56; (2006) 230 CLR 234 [123] (Callinan J), [158] (Crennan J). This is an incident of the judge's duty to ensure a fair trial for the accused. See RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620 [41] (Gaudron A-CJ, Gummow, Kirby & Hayne JJ).
80 In Dunn v The Queen [2015] WASCA 126, I reviewed numerous decisions of appellate courts which have considered whether, in the particular circumstances of the case under consideration, it was necessary for the trial judge to direct the jury as to what use, if any, it could make of a plea of guilty by an alleged co-offender (including, in some cases, an alleged co-conspirator). See R v Windsor [1953] NZLR 83; R v Moore (1956) 40 Cr App R 50; R v May [1984] 13 CCC (3d) 257; R v Fowler (1985) 39 SASR 440; Cowell v The Queen (1985) 24 A Crim R 47; R v Gallagher [1986] VicRp 25; [1986] VR 219; Romeo v The Queen [1988] WAR 304; Burnett v The Queen (1994) 76 A Crim R 148; Connell v The Queen (No 6) (1994) 12 WAR 133; R v Fountain [2001] VSCA 200; (2001) 124 A Crim 100; Napier v The State of Western Australia [2007] WASCA 248; Carney v The State of Western Australia [2010] WASCA 90; (2010) 201 A Crim R 537; Bou-Elias v The Queen (No 1) [2012] VSCA 61; R v Ormond [2012] SASCFC 130; Andelman v The Queen [2013] VSCA 25; (2013) 38 VR 659; and Power v The Queen [2014] VSCA 146; (2014) 43 VR 261. It is unnecessary to repeat my review of those decisions.
81 At the original trial, there was a discussion between the trial judge, the prosecutor and defence counsel, before the prosecutor and defence counsel made their opening statements, about what would be said concerning Ms Hall's plea of guilty. It is apparent from that discussion that defence counsel was content, at the original trial, for the prosecutor:
(a) to tell the jury, in his opening address, that Ms Hall had pleaded guilty to Ms Matthews' murder; and
(b) to adduce evidence from Ms Hall to that effect in examination-in-chief (original trial, 20 April 2015, ts 164 - 166, 190 - 191, 209 - 210).
82 At the retrial, the prosecutor proceeded in the same manner, without objection by defence counsel. The prosecutor told the jury, in her opening address, that Ms Hall had pleaded guilty to Ms Matthews' murder, and the prosecutor adduced evidence to that effect from Ms Hall in examination-in-chief (ts 1368, 1621).
83 At the retrial, defence counsel told the jury, in her opening address, that:
(a) The State's case 'is really going to stand or fall on one witness, and that is a witness by the name of Rebecca Hall' (ts 1382).
(b) Ms Hall 'was able to reach an agreement with the prosecution where she could be sentenced on her version of events' and '[i]ndeed, if she didn't give evidence incriminating [the appellant] she could be brought back to the court and resentenced' (ts 1382).
(c) [F]or her efforts in providing the version of events that described [the appellant] as the killer, [Ms Hall] was given a substantial reduction in the sentence she would otherwise have received', and the jury would 'hear more about that down the track' (ts 1382).
84 At the retrial, defence counsel reiterated, in her closing address, that 'the State's case stands or falls on Rebecca Hall' (ts 2575).
85 I am satisfied that defence counsel made a forensic or tactical decision that Ms Hall's plea of guilty, her cooperation with the law enforcement authorities and her reduced or lenient sentence were important aspects of the appellant's defence at the retrial. That is apparent from:
(b) the matters referred to by defence counsel in her exchange with her Honour, in the absence of the jury, before Ms Hall gave evidence (ts 1614 - 1618);
(c) defence counsel's cross-examination of Ms Hall; and
86 Defence counsel's strategy at the retrial was to endeavour to persuade the jury that there was, at least, a reasonable possibility that:
(b) Ms Hall had falsely implicated the appellant in the killing in order to shift primary responsibility for the murder from herself to the appellant and, by her apparent cooperation with the law enforcement authorities, to obtain a substantial reduction in sentence for herself.
87 I am satisfied that, in the circumstances, there was no real (as distinct from a fanciful) risk that, absent an appropriate direction from her Honour, the jury may attach some weight to Ms Hall's plea of guilty in evaluating whether the appellant had murdered Ms Matthews as alleged in the indictment. In particular, there was no real (as distinct from a fanciful) risk that, absent an appropriate direction, the jury may reason, in part, that, Ms Hall having pleaded guilty to murder on the basis that she was, in essence, the appellant's accomplice, it was likely or more likely that the appellant had in fact strangled Ms Matthews as alleged by Ms Hall in her evidence. My reasons are as follows.
88 First, it is not always necessary for a trial judge to direct a jury as to what use, if any, it may make of a plea of guilty by an alleged co-offender. See, for example, Ruffin v The State of Western Australia [2015] WASCA 127. Secondly, in the present case, it was permissible to inform the jury that Ms Hall had pleaded guilty because that was a necessary part of the overall material before them. See, generally, Cowell (50) (Street CJ, Lee & Wood JJ agreeing). Thirdly, the material before the jury in relation to Ms Hall did not merely include evidence of her plea of guilty. The material also included evidence of Ms Hall's confession to the police, evidence as to the admissions made by the appellant to Ms Hall while she was carrying a concealed recording device and, most significantly, Ms Hall's sworn evidence at the retrial. Fourthly, Ms Hall gave direct evidence at the retrial, which was admissible against the appellant, to the effect that he had strangled Ms Matthews. Ms Hall also gave direct evidence as to her having aided the appellant. That evidence constituted an admission of her complicity in the murder. Ms Hall's evidence was focused on the critical features of the State's case, namely the appellant's criminal conduct and her own criminal conduct. In the circumstances, the evidence of Ms Hall's guilty plea did not enhance materially the probative force of the State's case or detract materially from the weight of the appellant's defence. Fifthly, both at the original trial and at the retrial, defence counsel wanted the fact of Ms Hall's plea of guilty to be revealed to the jury for tactical or forensic reasons. One reason was that the guilty plea provided a foundation for attacking Ms Hall's credibility by asserting that her evidence inculpating the appellant had been fabricated with a view to obtaining for herself a more lenient sentencing disposition. Another reason was to provide a basis for submitting that Ms Hall had falsely implicated the appellant with a view to shifting primary responsibility for the murder from herself to the appellant (the appellant's defence being that it was Ms Hall who had strangled Ms Matthews, he did not touch Ms Matthews and he did not intervene because he was 'in shock'). Sixthly, informing the jury of Ms Hall's plea of guilty did not add materially to the evidence of her earlier voluntary confession to the police that she had aided the appellant in committing the murder. Seventhly, the State did not rely on Ms Hall's plea of guilty as part of its proofs against the appellant. It is true that the prosecutor referred to Ms Hall's guilty plea in her closing address (ts 2525, 2559 - 2560). However, the prosecutor referred to the plea as an aspect of her submission that the jury should regard Ms Hall as a truthful and credible witness and should reject defence counsel's attack in cross-examination on Ms Hall's honesty and reliability. In other words, the prosecutor's reference to the plea was made in the context of an argument relating to Ms Hall's credit as distinct from a piece of evidence which was, in itself or in combination with other evidence, probative of the appellant's guilt. Eighthly, it is true that her Honour made two references in her summing up to Ms Hall's plea of guilty. However, those references did not enhance materially the probative force of the State's case or detract materially from the weight of the appellant's defence. One reference was made in the context of reiterating to the jury the basis on which Ms Hall was sentenced and the possible application of s 37A of the Sentencing Act in relation to her undertaking to cooperate with the law enforcement authorities. The other was made in the course of summarising the State's case. Ninthly, the facts and circumstances of the present case are to be contrasted with a case in which a State witness has pleaded guilty to an offence of conspiracy and the accused is an alleged co-conspirator. In a case of that kind, there may well be a real (as distinct from a fanciful) risk that, absent an appropriate direction from the trial judge, the jury may reason, at least in part, that the State witness's guilty plea increases the likelihood that the accused did in fact agree with the witness to carry out the alleged unlawful purpose. Her Honour sentenced Ms Hall on the basis that the murder occurred in the prosecution of an unlawful purpose which the appellant had entered into with Ms Hall, namely to steal drugs and money with violence from Ms Matthews. See s 279(1)(c) of the Code. However, the State did not run its case against the appellant on that basis or on the basis of s 8 of the Code. Tenthly, her Honour directed the jury that Ms Hall had 'an obvious self-interest in maintaining the account [of events] that she gave to the police, even if it is a false account' (ts 2655) and that the jury should 'scrutinise her evidence with special care' and 'very carefully scrutinise her evidence', in the context of all the other evidence (including the evidence as to her general reliability and credibility), in determining whether the jury was prepared to rely upon her evidence (ts 2655). Eleventhly, defence counsel, who is a very experienced criminal defence lawyer, did not request her Honour to give the jury a direction of the kind now contended for on appeal. It is apparent that defence counsel did not perceive that there was any prospect that the jury might reason impermissibly or adversely to the appellant on the basis of Ms Hall's plea of guilty.
90 Ground 1 does not have a reasonable prospect of succeeding. Leave to appeal on ground 1 should therefore be refused. Neither ground 1 nor ground 2 has been made out. The appeal against conviction must be dismissed.
91 The appellant relies on two grounds in his appeal against sentence.
92 Ground 1 alleges that the minimum non-parole period of 20 years was manifestly excessive.
93 Ground 2 alleges that the sentence imposed on the appellant infringed the parity principle.
94 On 20 May 2016, Mazza JA referred the application for leave to appeal against sentence to the hearing of the appeal.
Appeal against sentence: the facts and circumstances of the offending and the appellant's personal circumstances
95 I have previously recounted the facts and circumstances of the offending.
96 The appellant was born on 23 April 1977. He was aged 34 at the time of the offending and was 38 when sentenced.
97 The appellant was raised by his mother. He has never known his father. The appellant had learning difficulties. He was disruptive at school and left school in year 9. He completed a certificate in metal engineering and three years of a four-year apprenticeship as an electrician. The appellant has usually been employed but has changed his employment frequently.
98 The appellant has five children. At the time of sentencing, they were aged between 8 and 17. The children were living with the appellant when he was arrested. They are now cared for by the appellant's mother and the appellant's former partner's mother.
99 The appellant has a long history of substance abuse. He began drinking alcohol heavily and using cannabis at about the age of 16. He began using amphetamines when he was 18. The appellant described himself as a recreational drug user.
100 The appellant continues to deny having killed Ms Matthews. The trial judge did not give him any credit for remorse. However, the appellant has indicated an intention to dedicate his life to helping his children and the community. He has undertaken a number of courses while in custody.
101 The appellant has a prior criminal record. In 2003, he was convicted on three counts of sexual penetration of a child under the age of 16. In 2013, he was convicted on two charges of breaching a violence restraining order. The appellant also has numerous convictions for traffic offences.
102 The material before her Honour included a psychological report dated 1 December 2015 from Chantelle Place, a forensic psychologist, and a pre-sentence report. Ms Place said the appellant had attempted to present himself as a person of moral standing and this presentation appeared to be a compensation for his negative appraisal of himself; the appellant was predominantly self-focused and had limited capacity for personal insight and reflection; and the appellant was manipulative and had a pattern of failing to take responsibility for his own actions. Her Honour expressed agreement with Ms Place's assessment, having had the opportunity to see and hear the appellant during the recorded conversations with Ms Hall, his lengthy interviews with the police and his evidence at the retrial. Ms Place said the appellant's risk of violent recidivism was low, primarily because of the absence of a prior history of violent behaviour.
103 The trial judge was unable to make a finding as to the appellant's motive in attacking Ms Matthews.
104 Her Honour sentenced the appellant on the basis that he had an intention to inflict bodily harm on Ms Matthews and that it was reasonably foreseeable that the bodily harm would cause her death. Her Honour did not sentence the appellant on the basis that he intended to kill Ms Matthews. Her Honour expressed the view that the severity of the appellant's attack on Ms Matthews, and the injuries he caused her to suffer, meant that whether it was the appellant's intention to kill her or not was 'of little moment' in the sentencing process, although it was, nevertheless, a relevant sentencing factor.
105 The trial judge said the appellant's offending was aggravated by the fact that, after he had attacked Ms Matthews, he 'so readily concluded that she was dead', he did not obtain any medical assistance for her and he then took 'specific actions' to cover up the offence.
Appeal against sentence: ground 1: its merits
106 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.
107 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.
108 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).
109 In Pedersen v The State of Western Australia [2010] WASCA 175, 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).
110 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.
111 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.
112 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.
113 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).
114 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 2008 (WA). 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; and Taylor v The State of Western Australia [2016] WASCA 210. 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.
115 In my opinion, the murder committed by the appellant was, no doubt, a serious example of offending of that kind. The appellant attacked Ms Matthews suddenly and unexpectedly. The attack was unprovoked. It was persistent and relentless. The attack occurred while Ms Matthews was a passenger in a moving vehicle. She was defenceless and unable to escape. The appellant concluded, without scrutiny or reflection, that his strangulation of Ms Matthews had killed her. He dumped her body (at a time when she was, in fact, still alive) in the reservoir. The appellant stole or destroyed items of property belonging to Ms Matthews. The destruction of the items was part of an attempt to conceal his involvement in the murder.
116 There was little mitigation available to the appellant. He did not have the benefit of a plea of guilty and he continued to deny having killed Ms Matthews. He did not have the mitigation of youth. The appellant's prior criminal record, and any failure of the previous sentences to achieve the purpose for which they were imposed, did not aggravate the current offending, but his record demonstrated that he was not of prior good character.
117 I am satisfied that the objective seriousness of the appellant's offending, and the significant sentencing factors of appropriate punishment and general deterrence, precluded the imposition of a lesser minimum non-parole period.
118 In my opinion, after taking into account and assessing 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 a sentencing judge must take into account when fixing a minimum non-parole period, the minimum term of 20 years was within the range open to her Honour on a proper exercise of her discretion. The length of the minimum non-parole period was not unreasonable or plainly unjust. The interests of justice did not, in the circumstances, require the imposition of a lesser minimum non-parole period. Error in the exercise of her Honour's discretion should not be implied or inferred from the sentencing outcome.
Appeal against sentence: ground 2: its merits
120 In Barnden v The State of Western Australia [2014] WASCA 161 [55] - [59], I summarised (Martin CJ & Mazza JA agreeing) the parity principle. It is unnecessary to repeat that summary.
121 In my opinion, when the appellant's complaint in ground 2 is examined in the context of all relevant facts and circumstances and all relevant sentencing factors, the disparity between his sentence and Ms Hall's sentence does not reveal any basis for an objectively justifiable sense of grievance or an objective appearance that justice has not been done.
122 There were numerous distinguishing features between the appellant's role and culpability in Ms Matthews' murder, on the one hand, and Ms Hall's role and culpability, on the other. Also, there were other distinguishing features between the sentencing factors relevant to the appellant's sentencing, on the one hand, and those relevant to Ms Hall's sentencing, on the other.
123 The objective facts and circumstances of the appellant's involvement in the murder were significantly more serious than the facts and circumstances of Ms Hall's involvement. The appellant instigated the offending and strangled Ms Matthews. Ms Hall aided him. The appellant took the initiative in dumping Ms Matthews' body (with Ms Hall's assistance) in the reservoir. He took the initiative in disposing of various items of Ms Matthews' property (with Ms Hall's assistance) with a view to avoiding apprehension by the police.
124 Ms Hall confessed to the murder, assisted the law enforcement authorities and pleaded guilty. By contrast, the appellant did none of those things.
125 In addition to her lesser role in the offending, Ms Hall was remorseful. She voluntarily went to a police station and confessed to the murder. She gave a full account of the offending to the police and assisted the police in their investigation by wearing a recording device when she spoke to the appellant about the murder. If Ms Hall had not confessed and cooperated with the law enforcement authorities, the appellant and Ms Hall may not have been charged with the offence.
126 Further, Ms Hall's personal circumstances were materially better than the appellant's. She had a more limited prior criminal record and she had voluntarily ceased using illicit drugs before she confessed. Ms Hall's prospects of rehabilitation were better than the appellant's.
127 I am satisfied, after evaluating all relevant facts and circumstances and all relevant sentencing factors concerning the appellant and Ms Hall, that the disparity between the appellant's sentence and Ms Hall's sentence did not infringe the parity principle or the principle of equal justice. The disparity between the sentences was not such as to give rise to a legitimate or justifiable sense of grievance on the appellant's part, or to give the appearance in the mind of an objective observer that justice was not done as between the appellant and Ms Hall or generally.
129 Neither ground 1 nor ground 2 has a reasonable prospect of succeeding. Leave to appeal should therefore be refused. Neither ground 1 nor ground 2 has been made out. The appeal against sentence must be dismissed.
(2000) 199 CLR 620
(2013) 38 VR 659
(1984) 58 ALJR 367
(1985) 39 SASR 440
(2006) 230 CLR 234
(1990) 169 CLR 525
(1988) 165 CLR 314
(1999) 195 CLR 665
(2011) 43 WAR 285
(2011) 42 WAR 91
(1994) 12 WAR 133
(2013) 45 WAR 328
(1989) 168 CLR 79
(1974) 131 CLR 623
(2014) 43 VR 261