Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Criminal law - Appeal - Sentence - Sentence of life imprisonment for aggravated armed robbery - When appellant eligible for consideration for parole - Whether sentence of life imprisonment manifestly excessive - Whether finite term ought to have been imposed in lieu of sentence of life imprisonment

Criminal law - Appeal - Sentence - Sentence of life imprisonment for aggravated armed robbery - Sentence of 10 years' imprisonment for attempted murder - No eligibility for parole - Whether trial Judge ought to have declared appellant eligible for parole on finite sentences - Meaning of s 89(4) Sentencing Act 1995 (WA)

Criminal law - Appeal - Whether verdict of jury unsafe and not supported by the evidence - Whether open to jury to be satisfied beyond reasonable doubt of appellant's guilt on circumstantial evidence led at trial

Evidence - Circumstantial evidence - Whether sufficient evidence to satisfy jury beyond reasonable doubt of guilt of appellant - Whether verdict unreasonable or unsupportable having regard to the evidence

Acts Amendment (Imprisonment and Parole) Act 1987 (WA)

Criminal Law (Sentencing) Act 1988 (SA), s 32(5)

Interpretation Act 1984 (WA), s 19

Offenders Probation and Parole (No 2) Act 1985 (WA), s 37, s 37A

Offenders Probation and Parole Act 1963 (WA), s 37

Sentence Administration Act 2003 (WA), s 4, s 12A, s 25

Sentencing Act 1995 (WA), s 85, s 89, s 90, s 91, s 93(1)(b)

1 WHEELER JA: I have read in draft the reasons for decision of Miller JA. I agree with them, save in respect of certain observations made by his Honour in relation to the principles governing eligibility for parole, and, in particular, in relation to the question of whether any bias towards eligibility for parole has been removed by the legislative changes to which his Honour refers.

2 In relation to the discretion to order parole eligibility, the position under the former s 37A of the Offenders Community Corrections Act 1963 (WA), as it was in 1992, was said by the Court of Criminal Appeal to include the following principles:

"[T]he discretion whether an order for eligibility for parole should be made cannot be triggered unless there is something in the materials before the sentencing judge which points positively towards the appropriateness of parole ... but nonetheless the philosophy of the Act suggests a bias towards eligibility." (Thompson v The Queen (1992) 8 WAR 387 at 395)

3 In Wongawol v The Queen (1998) 101 A Crim R 350 at 353, the Court of Criminal Appeal considered that the principles set out in Thompson were also applicable to s 89 of the Sentencing Act 1995 (WA) as it then was. Following amendments to s 89 in 2003, the Court of Criminal Appeal in Taylor v The Queen [2004] WASCA 31 at [18] applied the principles which had been enunciated in Thompson and applied in Wongawol to s 89 in a form materially the same as that now in question. An issue arises concerning whether the 2003 alterations to s 89 have affected either the principle that an order should not be made unless something in the circumstances points positively in favour of parole, or the principle that the "philosophy" of the Act is said to reflect a bias in favour of parole.

4 Quite apart from the philosophy, if any, of the relevant legislation there is at common law a "bias" in favour of parole, in the sense that the law recognises that a period of parole serves the interest of the community. As the High Court noted in Bugmy v The Queen [1990] HCA 18; (1990) 169 CLR 525 (especially at 531 - 532 per Mason CJ and McHugh J), the community benefits from the reformation of one of its members, which reformation it is assumed is assisted by parole. Less abstractly, it seems reasonably clear from the remarks made in many pre-sentence reports, particularly those relating to recidivist offenders, that, even where an offender wishes to reform, the period which presents the most difficulties in living up to that resolve is the period immediately following release from prison. That is because a person who has had little choice in how he or she orders daily life while imprisoned suddenly has many choices to make; the person may encounter (accidentally, or by design, or because sought out) former associates still engaged in criminal activity; and the person may often have difficulty in obtaining suitable employment, or training, or accommodation. The "carrot and stick" that parole affords - that is, both the advice of Community Corrections Officers, and the potential sanction of being returned to prison - serve the community interest in reducing the likelihood that a recently released offender will immediately return to a criminal lifestyle. Against that benefit, however, must be balanced the need to protect the community from particular types of offenders, and the need for deterrence in relation to particular types of offences.

5 So far as the legislative history is concerned, it is difficult to discern any consistent trend, either liberalising or restricting access to parole, and it is difficult, in the case of most amendments, to discern precisely what it was thought would be achieved by the alterations. The relevant changes to s 89 of the Sentencing Act 1995 should, in my view, be considered against the whole of the history of parole in this State, which I set out briefly below.

6 By s 37 of the Offenders Probation and Parole Act 1963, it was originally provided that, where a person was sentenced to a term of imprisonment, if the term of imprisonment was 12 months or greater, the Court "shall" fix a minimum term, being a lesser term than the term of imprisonment imposed, during which minimum term a person was not eligible for parole. Section 37(2), however, provided that the Court was not required to fix a minimum term if the Court considered that "the nature of the offence and the antecedents of the convicted person render the fixing of a minimum term inappropriate". In summary, there was a statutory duty to fix a minimum term, unless the Court considered that, having regard to the offence and the antecedents of the offender, it was not appropriate to do so. Different provision, not material for present purposes, was made in relation to sentences of less than 12 months, and for sentences imposed on habitual criminals and sentences of life imprisonment. There was, at that time, then, a clear statutory bias in favour of parole.

7 The Offenders Probation and Parole (No 2) Act 1985 (WA) amended s 37 in a way which, at first blush, appeared to reverse the statutory bias in favour of parole. Subsection (1) of s 37 then provided that, in the case of a term of not less than 12 months' imprisonment, where "the court considers that the nature of the offence or the circumstances of its commission or the antecedents of the convicted person or any of those things considered together renders the fixing of a minimum term appropriate", the Court might fix a minimum term. That portion of subs (2) which had previously provided that the Court was not required to fix a minimum term in certain circumstances was deleted. Again, there were a variety of exceptions which are not material for present purposes. In broad terms, the apparent effect of the 1985 amendments was to move from a discretion not to fix a minimum term, to a discretion to fix a minimum term. To the extent that that aspect of the legislation remained as at 1992 when the case of Thompson was decided, the reframing of s 37 in that way, against the background of its predecessor section, explains the Court's view that the discretion to order eligibility for parole could not be triggered unless there was something in the materials before the sentencing Judge which pointed positively towards the appropriateness of such an order. So far as any "bias" in favour of parole was concerned, it rather seems to me that it stemmed from the mere fact of the conferral of a discretion upon a sentencing Judge, against the background of the considerations militating in favour of parole which were discussed in cases such as Bugmy, rather than from any express statutory term.

8 In 1988, the Acts Amendment (Imprisonment and Parole) Act 1987 (WA) repealed s 37, substituting a provision irrelevant for present purposes. It also inserted s 37A, which was from that date the provision dealing with parole eligibility. Section 37A largely contained the same elements as its immediate predecessor, but ordered them differently. Section 37A(1) provided that, where a Court sentenced a person to a term of imprisonment (the distinction between shorter and longer terms having been removed), "the court may, if it considers that the making of an order under this subsection is appropriate, order that the convicted person be eligible for parole". The discretion was not at large entirely, since subs (3) provided that the Court "may" have regard to all or any of five factors. Those factors were the nature of the offence, the circumstances of the commission of the offence, the antecedents of the convicted person, circumstances which might in the opinion of the Court be relevant to the convicted person at the time at which he or she would become eligible to be released if a parole order were made, and "any other matter that the court thinks relevant".

9 The new s 37A was similar to the prior s 37 in the sense that it was framed in terms of a discretion to order parole, rather than a discretion not to order, and in its references to the nature of the offence and the antecedents of the offender as being relevant. The requirement for what came to be called "prognostication" as to circumstances which might prevail at the time of a future release, was a newly relevant consideration, and the broad residual category of "any other matter" that the Court thought relevant was also new. An important departure from the prior s 37 was that s 37A(3), in referring to the various relevant matters, provided that they were matters which were relevant to determining "whether" the making of an order was appropriate; that is, they were factors which might point in favour of, or against, the appropriateness of parole eligibility.

10 Section 89 of the Sentencing Act 1995, as originally enacted, was very similar to s 37A of the Offenders Probation and Parole Act 1963. Section 89(1) provided that a Court "may, if it considers that it is appropriate to do so" order eligibility for parole. That is almost identical to the prior s 37A(1), as it was following the 1987 amendments. Subsection (2) of s 89 provided that "[i]n determining whether it is appropriate" to make a parole eligibility order, the Court "may" have regard to "all or any of the following" (those being almost exactly the words used in s 37A(3) as it was post-1987). The factors to which the Court could have regard differed only slightly. There was reference to the "seriousness and nature" (rather than, as previously the "nature") of the offence, to the circumstances of commission of the offence, the antecedents of the offender, the "prognostication" issue and also to "any other reason the court decides is relevant". It is not surprising that, as I have noted, the Court took the view that the previous cases concerned with s 37A remained relevant to s 89 of the Sentencing Act 1995.

11 I turn now to s 89 as it currently stands. It is clear that there are some changes of detail. Subsection (1) now provides that a Court sentencing an offender to a fixed term "may order" that the offender be eligible for parole. The words "if it considers that it is appropriate to do so" have been deleted, but this is plainly of no significance. A Court is hardly likely to make such an order unless it considers it appropriate to do so. Relevant factors in relation to parole eligibility are changed, although, in my view, not significantly. The factors include whether the offence is serious, a circumstance which, in my view, would plainly encompass the previous reference to the seriousness and nature and to the circumstances of the commission of the offence. Another factor is whether the offender has a significant criminal record, which is one of the matters which would previously have been encompassed by the statutory reference to the offender's antecedents. As a separate matter, there is now reference to whether the offender when released from custody under a previous release order did not comply with the order. This, too, is a matter which would previously have been encompassed under the reference to the offender's "antecedents". Specific reference to the "prognostication" issue is removed. However, the Act retains the reference to "any other reason the Court considers relevant", which would plainly encompass all of the previous matters to which the prior s 89 and the prior s 37A had made reference.

12 The only alteration which may suggest a change of emphasis or a change of philosophy is the change effected by the opening words of s 89(4). As they are of such significance, I quote them verbatim:

"A court may decide not to make a parole eligibility order in respect of a fixed term imposed on an offender if the court considers that the offender should not be eligible for parole because of at least 2 of the following 4 factors - [the factors which I have enumerated are then set out]." (My emphasis)

13 At first blush, it seems to me that, rather than removing a bias in favour of parole, the legislation has come almost full circle back to the original s 37 of the Offenders Probation and Parole Act 1963, with its discretion not to make a parole eligibility order only in certain circumstances. It is true that under that previous provision, it was expressly provided that the Court "shall" make such an order, unless it determined that it was not appropriate for one of the reasons statute set out. However, reading s 89(1) and (4) together, it appears to me that the legislative assumption is that unless, pursuant to subs (4), the Court decides not to make an order, then the Court must order that the offender be eligible for parole. It would be odd if, having set out exhaustively factors relevant to the exercise of a discretion to order parole eligibility, and having provided that the Court may decide not to make such an order where at least two of those factors were present, the legislature nevertheless intended to leave it open to the Court to decline to make a parole eligibility order if only one of those factors was present, or indeed if none of them were present. Arguably, then, the effect of s 89(4) is to limit the discretion of the Court not to make a parole eligibility order, by requiring that at least two of the relevant factors are present before a discretion not to order parole eligibility is triggered.

14 Uninstructed by authority, it would have been my view that, on its face, s 89(1) of the Sentencing Act 1995 suggests a bias neither in favour of, nor against, the making of a parole eligibility order. However, s 89(4) does suggest that there is a legislative recognition of the desirability of making a parole eligibility order whenever it is not positively inappropriate to do so. The better construction of s 89(4), in my view, would involve reading it as if it positively prohibited a Court from declining to make a parole eligibility order unless at least two of the factors enumerated militated against the making of such an order. Having regard to the statutory history which I have briefly discussed, that impression of s 89(4) is, in my view, confirmed.

15 On the construction which I would prefer, the relevance of previous authority, to the extent that it suggests that there is a "bias" in favour of parole, would remain unchanged. I am less certain about the status of the previous principle that an order for parole eligibility cannot be made unless the Court is of the view that there is something in the materials before the sentencing Judge which positively points in favour of parole eligibility. It may be that s 89(1) and (4), read together, have the effect that where the Court is not of the view that there is something which points positively in favour of parole, a parole eligibility order should, nevertheless, be made unless there are present at least two factors of the list set out in subs (4), which suggest that such an order should not be made.

16 A difficulty with the construction I prefer arises if consideration is given to the extrinsic materials, and in particular to the Second Reading Speech of the Minister introducing the Sentencing Legislation Amendment and Repeal Bill 2002, by which s 89 was amended (Parliamentary Debates, Legislative Assembly, 15 August 2002, pages 177 - 180). In that speech, "key reforms" were said to include a "greater capacity for courts to refuse eligibility for parole" and the Minister said in that speech that the pre-existing presumption in favour of eligibility for parole would no longer apply. Unfortunately, the Minister did not in that speech suggest which of the clauses of that Bill were considered to have the effect which he described. The Report of the Review of Remission and Parole (the "Hammond Report") appeared to suggest that an amendment of this kind, modelled on the Criminal Law (Sentencing) Act 1988 (SA) (s 32(5)), might result in some more generous discretion not to order parole eligibility. However, there appears to me, for the reasons which I have explained, to be nothing in s 89 which could be considered to have such an effect. The South Australian provision appears in a statutory context which provides that the Court "must" fix a parole period (s 32(1)), subject to the discretion which s 32(5) confers. In that context, it is plain that s 32(5) has the effect which I have tentatively suggested in [13], in relation to s 89(4).

17 In relation to the question of whether the Court should have regard to the Minister's view, as expressed in that speech, when interpreting s 89, the position is governed by s 19 of the Interpretation Act 1984 (WA). That provides that resort can be had to extrinsic material, including material such as a Second Reading Speech, in interpreting a written law, only for the purposes of: confirming that the meaning of the written law is the ordinary meaning conveyed by its text (read in its context); or determining the meaning of a provision in a written law when the provision is either ambiguous or obscure, or when the ordinary meaning conveyed by the text leads to a result which is manifestly absurd or unreasonable.

18 Taking each of those matters in turn, the Second Reading Speech plainly does not confirm that the meaning of the provision is the ordinary meaning conveyed by its text. There is nothing in the text to suggest that the discretion should be more readily exercised against the making of a parole eligibility order, as compared with the discretion conferred in previous legislation. The only potential ambiguity or obscurity, appears to me to revolve around the question of whether a Court may decide not to make a parole eligibility order even where it finds that there are not present at least two of the four factors enumerated in subs (4). The Second Reading Speech does not address that question directly, and it is not, in any event, a question which arises in the present case. Finally, the ordinary meaning conveyed by the text of s 89 does not lead to a result which is either manifestly absurd or unreasonable. It may not be the result which those introducing the legislation intended, but that is a different consideration. For those reasons, it appears to me that s 19 of the Interpretation Act 1984 does not permit resort to the Second Reading Speech in order to determine - much less to vary - the apparently preferable construction of s 89.

19 It will be apparent from the foregoing survey that I would respectfully differ from Miller JA's conclusion at [65] of his reasons that "even if there was once a bias towards eligibility for parole, there is not such a bias today". In my view, if, as existing authority suggests, there was in prior legislation a bias toward eligibility for parole, that bias is not removed by the present s 89. It is unlikely, in my view, that the somewhat different approach which I take to the construction of s 89 will have any practical consequence, since, as his Honour notes in [66] considerations of rehabilitation of the offender, and the interests of the community in having offenders rehabilitated, continue to be relevant to the determination of eligibility for parole pursuant to s 89(4).

20 In any event, in the present case, I would agree with the conclusions reached by Miller JA, that the learned sentencing Judge in this case clearly took the view that there were present at least two factors telling against an order for eligibility for parole, and that his Honour was plainly right in that conclusion. Having regard to the matters which Miller JA has described, it was clearly open to the learned sentencing Judge to conclude that it was not appropriate to order eligibility for parole.

21 PULLIN JA: I have read a draft of the reasons of Miller JA. I agree with them but, like Wheeler JA, I wish to make my own observations about the statutory provisions governing eligibility for parole.

22 The history of the legislation leading up to the present s 89 of the Sentencing Act 1995 is as follows:

(a) Section 37 of the Offenders Probation and Parole Act 1963 (renamed the Offenders Community Corrections Act 1963 by s 18 of the Community Corrections Legislation Act No 61 of 1990) employed a "shall/unless" formula. The court was directed that it shall fix a minimum term before the person becomes eligible for parole unless certain negative factors persuaded the court not to do so. This was a provision stronger than a bias in favour of parole eligibility. It was a statutory direction to impose a minimum term unless the negative factors persuaded the court to do otherwise.

(b) The amendments made to s 37 by the Offenders Probation and Parole (No 2) Act 1963 No 118 of 1985 substituted a "may/if" formula. In other words, the court was informed that it "may" grant parole eligibility "if" certain favourable factors persuaded the court to do so.

(c) In 1987 s 37A replaced s 37. It used the "may/if" formula. The court in Thompson v The Queen (1992) 8 WAR 387 at 395 suggested this meant there was a bias against parole eligibility when it said that "the discretion whether an order for eligibility for parole should be made cannot be triggered unless there is something in the materials before the sentencing judge which points positively toward the appropriateness of parole". In apparent contradiction of that statement the Court then went on to say that "nonetheless the philosophy of the Act suggests a bias towards eligibility".

(d) In the Sentencing Act 1995, when first enacted, the provision governing parole eligibility was s 89. It used the "may/if"

formula. In my view, when the "may/if" formula is used there is a conferral of a discretion with a limit on the power to exercise it. The power "may" only be exercised "if" the condition exists.

23 For my part, I would prefer not to refer to any of this legislation as revealing a "bias" for or against the grant of parole eligibility. The "shall/unless" formula is a statutory direction to grant (not a bias in favour of granting) parole unless the specified criteria exist. The "may/if" formula confers a discretion and does not direct the grant; the existence of the "if" conditions mean the power may not be exercised if the conditions do not exist. In my view neither formula involves a statutory "bias" one way or the other.

(e) In 2002 s 89 of the Sentencing Act 1995 (WA) was amended. The amended s 89(1) provided that the court "may" make a parole eligibility order and it was not apparently confined. However, an apparently unconfined discretion is always in fact confined by the subject matter, scope and purpose of the enactment. See Water Conservation Commission v Browning [1947] HCA 21; (1947) 74 CLR 492 at 505 per Dixon CJ. To determine the scope of the legislation it is necessary to read the Act as a whole. Reading the Sentencing Act 1995 as a whole brings one to s 89(4) which uses a "may decide not/if" formula, ie the court "may decide not" to make a parole eligibility order "if" two adverse condition exist. This is an unusual statutory provision. It has to be read in conjunction with s 89(1), so that the broad discretion conferred by s 89(1) is followed by this further reference to how the discretion might be exercised by the court. Parliament by subs (4) suggests, but does not direct, the court to refuse or grant parole eligibility.

24 The statement by the Minister that the key reforms introduced by the amendments in 2002 conferred a "greater capacity to refuse eligibility for parole" seem to be incorrect. The Minister's words cannot override what Parliament has said in the Act itself. See Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300 at [31]. The overall effect of the present s 89 is that in s 89(1) it confers a discretionary power and in s 89(4) it lists some relevant considerations in relation to the exercise of the power.

25 I agree with the conclusions reached by Miller JA that the sentencing Judge did not err in deciding that it was not appropriate to order eligibility for parole.

26 MILLER JA: These appeals arise out of the conviction of three offenders for offences of aggravated armed robbery (two counts), stealing a motor vehicle and attempted murder.

27 These are two of three appellants who were tried before McKechnie J and a jury in the Supreme Court at Perth between 3 and 21 April 2006. Each was charged with two counts of aggravated armed robbery, one count of stealing a motor vehicle and one count of attempted murder. Each was convicted of those offences. On 21 April 2006, each was sentenced to identical terms of imprisonment. Those sentences were as follows:

Count 1 -Aggravated armed robbery: Imprisonment for life

Count 2 - Stealing a motor vehicle: Imprisonment for 2 years

Count 3 - Attempted murder: Imprisonment for 10 years

Count 4 - Aggravated armed robbery: Imprisonment for 8 years

28 The learned sentencing Judge declined to order eligibility for parole for the co-offender David Graeme Hintz ("Hintz") or the appellant Johnny Ronald Piccolo ("Piccolo"), but made an order for eligibility for parole for the appellant Bradley Ian Noble ("Noble").

Hintz v The State of Western Australia (CACR 55 of 2006)

29 In an appeal which was initially to have been heard with those of Piccolo and Noble, Hintz appeals against the sentence of life imprisonment imposed for the offence of aggravated armed robbery which constituted count 1 on the indictment. The ground of appeal is that the sentence of life imprisonment was manifestly excessive, having regard to the range of sentences imposed in similar cases, and the fact that the appellant had no record of committing similar offences. There is no appeal against the refusal to make an order for eligibility for parole.

Piccolo v The State of Western Australia (CACR 58 of 2006)

30 Piccolo's appeal initially contained two grounds. The first was that the sentence of life imprisonment imposed on count 1 on the indictment was manifestly excessive. The second was that the learned sentencing Judge erred in law by mistakenly concluding that s 89(4) of the Sentencing Act 1995 (WA) applied in the circumstances of the case.

Noble v The State of Western Australia (CACR 60 & 61 of 2006)

31 Noble's appeals were originally an appeal against conviction and an appeal against sentence. The appeal against conviction is based upon the contention that the verdicts of the jury of guilty in respect of each count on the indictment were unreasonable and cannot be supported, having regard to the evidence. The appeal against sentence was in the same terms as Piccolo's appeal against sentence.

32 At the hearing of the appeal, counsel for Hintz sought an adjournment of the hearing to enable him to take further instructions, and to consider an amendment to the grounds of appeal. This was partly due to developments in relation to Piccolo and Noble's appeals against sentence.

33 The Court adjourned the hearing of Hintz's appeal against sentence to enable counsel to take further instructions and to consider a proposed amendment to the grounds of appeal.

34 Piccolo's appeal against sentence was abandoned in relation to ground 1, but pursued in relation to ground 2. That ground effectively became a contention that, in the circumstances of the case, there ought to have been an order for eligibility for parole in relation to the finite terms imposed by the learned sentencing Judge. Counsel for Piccolo urged the Court to express a view on the effect of the sentence of life imprisonment imposed on count 1, and this, the Court is prepared to do.

35 Noble abandoned his appeal against sentence, but counsel for Noble again asked the Court to clarify the circumstances in which the sentence of life imprisonment imposed on the first count on the indictment would be served. That is to say, what future entitlement the appellant would have in relation to an order for parole.

36 It is unnecessary for the Court to make any statements in relation to Noble's appeal against sentence, save to say that the reasoning applicable to Piccolo's appeal against sentence (insofar as it relates to the sentence of life imprisonment on count 1 on the indictment) is equally applicable.

Piccolo - Appeal against sentence (CACR 58 of 2006)

37 Ground 1 of Piccolo's appeal against sentence has been abandoned, but ground 2 is inextricably linked with ground 1. It contends that the learned sentencing Judge erred by mistakenly concluding that s 89(4) of the Sentencing Act 1995 applied in the circumstances of the case.

38 The transcript of the proceedings reveals that, following the conviction of the appellants, counsel for the prosecution contended before the learned sentencing Judge that he had a discretion whether to grant eligibility for parole pursuant to s 89(4) of the Sentencing Act 1995. However, it was not then clear that the learned sentencing Judge was considering the imposition of a sentence of life imprisonment in relation to count 1 on the indictment.

39 When the learned sentencing Judge sentenced the three appellants he made the following observations about eligibility for parole:

"Having regard to the serious nature of the offence, your past records and performances on parole, I decline to make a parole order in respect of you, Hintz, and you, Piccolo. For you, Noble, I will make a parole order where appropriate because your record is, while bad, not so bad as to cause me to refuse to make such an order."

His Honour then went on to impose the sentences to which I have referred.

40 During the course of these appeals, the prosecution conceded that the learned sentencing Judge had no power to order eligibility for parole in relation to the sentences of life imprisonment imposed upon the appellants. It is only in the case of a conviction for wilful murder or murder that a sentencing Judge is entitled to order eligibility for parole, and then he is required (my emphasis) by s 90 of the Sentencing Act 1995 to set a minimum period that the offender must serve before being eligible for release on parole. In the case of murder, it is at least 7, and not more than 14 years, and in the case of wilful murder at least 15, and not more than 19 years. In the case of strict security life imprisonment (s 91 Sentencing Act 1995), the sentencing Judge must, unless making an order that the offender be imprisoned for the whole of his life, set a minimum period of at least 20, and not more than 30 years to be served before eligibility for release on parole.

41 Clearly, s 89(4) of the Sentencing Act 1995, which provides that the Court may decide not to make an eligibility order in respect of a fixed term, is inapplicable to a sentence of life imprisonment. Only in relation to a sentence of life imprisonment imposed pursuant to s 90 of the Sentencing Act 1995 (for wilful murder or murder), is the sentencing Judge obliged to fix a minimum term before eligibility for parole. Sentences of life imprisonment imposed for offences other than wilful murder or murder are governed by the provisions of the Sentence Administration Act 2003 (WA) and the provisions of s 85 of the Sentencing Act 1995.

42 A parole order is defined in both Acts, (Sentence Administration Act 2003 s 4 and Sentencing Act 1995 s 85) to mean an order made under Pt 3 of the Sentence Administration Act 2003 that a prisoner be released on parole. Orders made under Pt 3 of the Sentence Administration Act 2003 include an order by the Governor under s 25 of that Act, that a person serving a term of life imprisonment be paroled.

43 There is a distinction between the "parole order" and "parole eligibility order". A parole eligibility order is an order under s 89 of the Sentencing Act 1995 and that is an order which may only be made in respect of a fixed term of imprisonment. A "fixed term" is defined in s 85 of the Sentencing Act 1995 as "a term that is not a life term". Clearly, therefore, s 89 has no applicability to the sentence of life imprisonment imposed by the learned sentencing Judge on each of the appellants in this case.

44 The offence of armed robbery is constituted by s 392 of the Criminal Code (WA). Section 392(c) provides that, where the offender is armed with any dangerous or offensive weapon at the time of commission of the offence of robbery, he is liable to imprisonment for life. Such a life term is governed by the provisions of the Sentence Administration Act 2003. In cases in which a prisoner is serving life imprisonment for an offence other than murder or wilful murder, the Prisoners' Review Board is required, under s 12A of the Sentence Administration Act 2003, to give the Minister a written report about a prisoner seven years after the day on which the term began, or is taken to have begun, and then every three years after that. Under s 12A(3), the report must deal with the release considerations relating to the prisoner. Section 12A(4) provides that the report must report on:

"(a) whether the prisoner should be released on parole; and

(b) if release on parole is recommended -

(i) the period for which the prisoner should be on parole; and

(ii) the additional requirements (if any) to which the prisoner should be subject while on parole."

45 Section 12A(5) provides:

"A report given under subsection (2) may recommend whether or not the Governor should be advised to exercise any power vested in the Governor to release the prisoner, and, if release is recommended, the requirements or conditions (if any) that should apply to the prisoner's release."

46 Section 25 of the Sentence Administration Act 2003 indicates how the Governor may parole a prisoner serving life imprisonment. It is in the following terms:

"25. Life imprisonment, Governor may parole prisoner

(1) The Governor may make a parole order in respect of a prisoner serving life imprisonment but only if -

(a) the prisoner has served the minimum period set by the court under section 90 of the Sentencing Act 1995; and

(b) a report about the prisoner has been given by the Board under section 12 or 12A.

(2) The release date in the order is that set by the Governor.

(3) The parole period in the order is to be set by the Governor and must be at least 6 months and not more than 5 years."

This section is confusing because it refers in s 25(1)(a) to a prisoner having served the minimum period set under s 90 of the Sentencing Act 1995. As has been observed, this minimum term can only be set in relation to offences of murder or wilful murder.

47 The section needs to be read as if s 25(1)(a) means:

(a) the prisoner has served the minimum period set by the court under s 90 of the Sentencing Act (where applicable); and

However, s 25(1)(b) gives to the Governor power to make a parole order when he has received a report about a prisoner under s 12A of the Sentence Administration Act 2003, and, pursuant to s 12A(5), such a report may recommend release on certain requirements and/or conditions.

48 Despite the ambiguity of s 25 of the Sentence Administration Act 2003, it seems that, in this case, upon receipt of a report, the Governor may make a parole order under s 25, the release date of which will be set by the Governor and the parole period of which must be at least 6 months and not more than 5 years.

49 It follows that, in the case of Piccolo, the Prisoners' Review Board is required, at the expiration of 7 years from the date upon which the sentence of life imprisonment began (21 April 2006), to furnish to the Minister a written report about the prisoner which must deal with release considerations relative to the appellant. If a recommendation is made for release on parole, it will be considered by the Governor.

50 On the facts of this case, it is clear that no parole order can be made in respect of Piccolo 7 years after the date upon which the life term began. That is because Piccolo is serving a sentence of 10 years for attempted murder (presently with no eligibility for parole), commencing 21 April 2006.

51 If an order for eligibility for parole is considered appropriate for Piccolo, he will have to serve 8 years of the 10-year sentence before being eligible for parole (s 93(1)(b) Sentencing Act 1995).

52 Pursuant to s 25 of the Sentence Administration Act 2003, the Governor could make a parole order in respect of Piccolo (if granted eligibility for parole) in which the release date in the order is nominated to commence at the expiration of 8 years from the date upon which the life term was imposed. (It is likewise in the case of Noble, who will be eligible for release on parole 8 years after 21 January 2006, the commencement date of his sentences.) Such an order would coincide with the date upon which the offender would be eligible for release on parole under the fixed term imposed for the crime of attempted murder.

53 If the Court declines to order that Piccolo be eligible for release on parole in relation to the fixed term imposed for attempted murder, the next written report to be provided to the Minister by the Prisoners' Review Board would occur after the expiration of a further 3 years. This would be 10 years from the date of the imposition of the life sentence. That date would coincide with the expiration of the fixed term of 10 years imposed for the crime of attempted murder.

54 Counsel for Piccolo urged the Court to conclude that the learned trial Judge had erred in declining to order eligibility for parole in relation to the finite sentences imposed on counts 2, 3 and 4 on the indictment. It was argued that provision for parole ought to have been made in the circumstances of the case because there was a benefit to the appellant in providing a basis for "hope of earlier release and in turn an incentive for rehabilitation". It was contended that this would provide for mitigation of punishment in the interests of the community and the prisoner.

55 Reliance was placed upon a number of common law cases. The first of the cases relied upon was Bugmy v The Queen [1990] HCA 18; (1990) 169 CLR 525. There, Mason CJ and McHugh J at 531 - 532 said:

"... although the fixing of a minimum term confers a benefit on the prisoner, it serves the interests of the community rather than those of the prisoner: Attorney General v Morgan and Morgan. In that case Jenkinson J, with whom Kaye J agreed, pointed out that considerations relevant to the interests of the community which the imprisonment of offenders is designed to serve, as well as circumstances which mitigate punishment, will be taken into account in determining the head sentence and, again, in fixing the minimum term. At that stage the various interests of the community 'will be balanced against the advantages to the community which release on parole is thought likely in the particular circumstances to confer, and against whatever degree of mitigation mercy to the offender may claim without injustice.'

...

A prisoner's prospects of rehabilitation will be relevant to the fixing of a minimum term, both by way of mitigation and because the community benefits from the reformation of one of its members. Conversely, the community needs to be protected from a violent offender, especially one whose prospects for rehabilitation are bleak. Likewise, the nature of the crime will be relevant because a more serious offence will warrant a greater minimum term due to its deterrent effect upon others. But the nature of the offence does not assume the importance which it has when the head sentence is determined. There, the sentence must be proportionate to the gravity of the offence Veen v The Queen [No 2], whereas the minimum term represents a portion of the head sentence during which the offender will not be considered for parole. In one sense, that portion must itself bear a proportionate relation to the crime. Generally speaking, the perceived prospects of rehabilitation will make a significant difference. Among other things, those prospects will affect what is required by way of protection of the community. Release on parole is a concession made when the Parole Board decides that the benefits accruing by way of rehabilitation and the recognition of mitigating factors outweigh the danger to the community of relaxing the requirement of imprisonment." [Footnotes omitted.]

56 The second case relied upon was Deakin v The Queen [1984] HCA 31; (1984) 54 ALR 765. There, the High Court was dealing with an appeal from the Court of Criminal Appeal of Western Australia. The legislation then in effect was the Offenders Probation and Parole Act 1963, s 37(1) and s 37(2) of which were under consideration. The Court said at 766:

"However, a question of principle does arise in relation to the refusal of the learned trial judge to fix a minimum period. The effect of s 37(1) and (2) of the Offenders Probation and Parole Act (WA), as amended, so far as relevant, is that where a person is convicted and sentenced to a term of imprisonment of not less than twelve months, the court shall fix a minimum term during which the convicted person is not eligible to be released on parole, unless it considers 'that the nature of the offence and the antecedents of the convicted person render the fixing of a minimum term inappropriate'. The intention of the legislature in providing for the fixing of minimum terms is to provide for mitigation of the punishment of the prisoner in favour of his rehabilitation through conditional freedom, when appropriate, once the prisoner has served the minimum time that a judge determines justice requires that he must serve having regard to all the circumstances of his offence: see Power v R [1974] HCA 26; (1974) 131 CLR 623 at 629."

57 The provisions of s 89(4) of the Sentencing Act 1995 are in quite different terms from earlier provisions of the Act and other earlier legislation. The subsection provides that a Court may decide not (my emphasis) to make a parole eligibility order in respect of a fixed term imposed on an offender if the Court considers that the offender should not be eligible for parole because of at least two of four factors. The four factors are:

"(a) the offence is serious;

(b) the offender has a significant criminal record;

(c) the offender, when released from custody under a release order made previously, did not comply with the order;

(d) any other reason the court considers relevant."

58 Prior to the 2003 amendments to the Sentencing Act 1995, the relevant factors which bore on eligibility for parole were contained within s 89(2) of the Act. This was substantially similar to the earlier s 37A(3) of the Offenders Community Corrections Act 1963. Sections 89(1) and (2) of the Sentencing Act 1995 were in the following terms:

"(1) A court sentencing an offender to one or more fixed terms may, if it considers that it is appropriate to do so, order that the offender be eligible for parole by making a parole eligibility order.

(2) In determining whether it is appropriate to make a parole eligibility order, a court may have regard to all or any of the following:

(a) the seriousness and nature of the offence;

(b) the circumstances of the commission of the offence;

(c) the offender's antecedents;

(d) circumstances relevant to the offender or which, in the court's opinion, might be relevant to the offender at the time when the offender would be eligible for release on parole if a parole eligibility order were made;

(e) any other reason the court decides is relevant."

59 In Thompson v The Queen (1992) 8 WAR 387 the Court (Malcolm CJ, Pidgeon and Owen JJ) said in relation to the decision whether or not to make an order for eligibility for parole under s 37A of the Offenders Community Corrections Act 1963:

"The nature and purpose of parole and the way in which a court should enter upon a determination whether to make an order for eligibility for parole has been the subject of comment in numerous decisions. The principles are well known. However, they bear repeating. The principles which are relevant in the context of this application are as follows:

(a) once a court sentences a person to a term of imprisonment the question of eligibility for parole of the offender must be considered (s 37A(1)): see Swain v The Queen (1989) 41 A Crim R 214 at 216, per Malcolm CJ;

(b) whether to order eligibility for parole calls for the exercise of a judicial discretion: see Swain v The Queen (supra) (at 218);

(c) the discretion whether an order for eligibility for parole should be made cannot be triggered unless there is something in the materials before the sentencing judge which points positively towards the appropriateness of parole (see Howell v The Queen (1989) 2 WAR 60 at 61 - 62, per Wallace J) but nonetheless the philosophy of the Act suggests a bias towards eligibility (see Howell v The Queen (supra), per Brinsden J (at 67 - 68); Yarran v The Queen (unreported, Supreme Court, WA, Library No 8762, 15 March 1991), per Malcolm CJ, at 4);

(d) parole serves to mitigate punishment as well as provide an opportunity for rehabilitation: see Deakin v The Queen [1984] HCA 31; (1984) 58 ALJR 367;

(e) in determining whether an order for eligibility for parole should be made, the sentencing judge may have regard to all or any of the following:

(i) the nature of the offence;

(ii) the circumstances of the commission of the offence;

(iii) the antecedents of the offender;

(iv) circumstances which are relevant to the offender or which might, in the opinion of the judge, be relevant to the offender at the time at which the offender would become eligible to be released from prison on parole if an order for eligibility were made;

(v) any other matter that the judge thinks relevant (s 37A(3));

(f) the matter raised in item (e)(iv) above requires the sentencing judge to prognosticate circumstances which may be relevant to the offender at the time when he or she would be eligible for release, thus recognising a relationship between punishment of the offender on the one hand and the need to consider factors leading to the offender's rehabilitation on the other: see Archibald v The Queen (1989) 40 A Crim R 228 at 233 - 234, per Wallace J.

(g) the purpose of the prognosis required by item (e)(iv) above is to enable some preliminary consideration of the question, whether, in terms of rehabilitation of the offender, he or she is likely to benefit from serving the relevant portion of the sentence under supervision in the community: see Archibald v The Queen (supra), per Malcolm CJ (at 230);

(h) the severity of a sentence is relevant to the question of eligibility for parole but even where the sentence is lenient, it is still necessary to consider the question: see Swain, per Malcolm CJ (at 217);

(i) the need to protect the community or particular members of it is a factor relevant to the exercise of discretion both by the sentencing judge and, ultimately, the Parole Board: see Yarran v The Queen (supra), per Malcolm CJ (at 4)."

60 Subsequently, in Garlett v The Queen [2000] WASCA 72; (2000) 111 A Crim R 336, Anderson J (with whom Pidgeon J agreed) rejected the suggestion that a bias towards eligibility for parole meant that a sentencing Judge had to start from a presumption in favour of the grant of parole. His Honour pointed out at [87] that there had to be material before the sentencing Judge which pointed positively towards the appropriateness of parole before the discretion to grant parole could be exercised. It would then be exercised in favour of the prisoner unless there was sufficient reason not to exercise the discretion in his or her favour.

61 In Wongawol v The Queen (1998) 101 A Crim R 350, the Court (Walsh, Wallwork and Murray JJ) concluded that the principles set out in Thompson v The Queen which related to whether a parole order should be made under s 37A of the Offenders Community Corrections Act 1963 were the same principles to be applied under the legislative provisions then set out in Pt 13 of the Sentencing Act 1995 and Pt 3 of the Sentence Administration Act 2003. Murray J (at 359) stated that the then "new" s 89(1) and s 89(2) of the Sentencing Act 1995 were expressed in terms substantially identical to the former provisions of s 37A(1) and s 37A(3) and it followed that the authority of Thompson v The Queen (at 395 - 396) "remains undiminished".

62 The provisions of s 89(4) of the Sentencing Act 1995, introduced in 2003, have altered the position. Those amendments have the consequence of removing any suggested bias towards a grant of eligibility for parole. As I have pointed out, Anderson and Pidgeon JJ in Garlett v The Queen rejected the suggestion that there was a bias towards eligibility for parole in Thompson v The Queen, but whether there was or was not, it is clear that the 2003 amendments removed any perceived bias to that effect, making the discretion whether or not to grant eligibility for parole a discretion at large. It was so held by Simmonds J in Messiha v Royce [2004] WASCA 87; and Austin v Grapes [2004] WASCA 102.

63 In Taylor v The Queen [2004] WASCA 31, the Court referred to the new s 89(4) of the Sentencing Act 1995. McKechnie J, with whom Steytler and Wheeler JJ agreed, adopted the principles relating to parole eligibility which had been restated in Abdullah v The Queen [2002] WASCA 57 by Steytler J at [14]. That case was concerned with s 89(2) of the Sentencing Act 1995, not the amendments contained within s 89(4). Nevertheless, McKechnie J considered the principles which Steytler J had there set out to govern the decision not to make a parole eligibility order under s 89(4). What Steytler J had said is as follows:

"The discretion whether an eligibility for parole order should be made cannot be triggered unless there is something in the materials before the sentencing Judge which points positively towards the appropriateness of parole. While it is true that there may be a bias towards eligibility, that bias does not mean that the Court must start from a presumption in favour of the grant of parole. (See, respectively, Thompson v The Queen (1993) 8 WAR 387 and Garlett v The Queen (2000) 111 A Crim R 336; [2000] WASCA 72 at [87]). Rather, as has been pointed out in Garlett, the bias is such that, provided there is material before the sentencing Judge which points positively towards the appropriateness of parole, the discretion to grant parole will be exercised in favour of the prisoner unless there is a sufficient reason not to exercise that discretion in his or her favour."

64 In my view, the observations of McKechnie J in Taylor v The Queen overlook the fundamental change brought about by the substitution in 2003 of s 89(4) for s 89(2) of the Sentencing Act 1995. Although Steytler and Wheeler JJ agreed with the reasons of McKechnie J, the difference between the two subsections was not addressed.

65 I consider that even if there was once a bias towards eligibility for parole, there is not such a bias today. At the same time, there is no bias against parole. The sentencing Judge has a discretion not to make a parole eligibility order in the event that certain factors are revealed.

66 Nevertheless, considerations of rehabilitation of the offender and the interests of the community in having offenders rehabilitated are relevant to the determination of eligibility for parole pursuant to s 89(4) of the Sentencing Act 1995.

67 In the present case, the learned sentencing Judge took the view that there were present the factors which told against an order for eligibility for parole. Although not referring directly to s 89(4), his Honour clearly had in mind the four factors set out in that subsection when he declined to make a parole eligibility order for Piccolo. His Honour referred to the serious nature of the offence(s), the past records of the appellant and his performances on parole.

68 There is no doubt that the learned sentencing Judge was correct in concluding that the offences were serious. They were extremely serious. The full facts will be referred to in relation to Noble's appeal against conviction, but for present purposes it is sufficient to quote sections of the learned sentencing Judge's summation of the facts as follows:

"The circumstances as the evidence unfolded revealed that the three of you formed a plan to ruthlessly rob a jewellery store and get away. Planning was meticulous. You had obtained mobile phones for communications, a pinhole camera, no doubt to observe the jewellery store from the ceiling where two of you were hiding, a shotgun and a pistol. All of you were disguised with balaclavas.

Each of you played different parts. I'm inclined to think that it's likely that you, Hintz, were armed with the shotgun; you, Piccolo, were armed with the pistol; and you, Noble, were the getaway driver ...

Pursuant to the plans you made at some time before 9.30 am on 11 May 2004, two of you cut through the roof of the Newpark shopping centre and made your way to above the little office cubicle of Mr Le's store. After notifying the getaway driver by phone that the time had come, you dropped down on Mr Le, nearly on top of him. His terror and his anguish is obvious both on the security film and in having to relive it in court. You proceeded to break glass cabinets and steal about $20,000 worth of jewellery.

By chance, security officers from Armaguard were refreshing the contents of an automatic teller machine nearby. Attracted by the commotion, Mr Kent, one of the guards, approached the shop. He was armed. He told you to freeze. There was an exchange of shots between the two who were inside and Mr Kent. This clearly indicates your preparedness to use the loaded weapons if anyone got in your way.

The two ran from the mall to the waiting getaway car. Mr Zanki and Mr Kent came after you and there was a further exchange of shots. I find that before the shot which hit Mr Kent and caused him injury, the person with the shotgun said, 'You're gone.' It follows from the jury's verdict that each of you is guilty of attempting to murder Mr Kent. Whoever pulled the trigger intended to kill him.

...

Your plans went astray when the getaway car ran into a truck, forcing you to abandon it and escape. One of you who was armed, probably Mr Piccolo but I make no finding, tried to threaten Mrs Tran into giving up her vehicle but although frightened, she managed to drive away. Two of you then went to Mr Pham and threatened him by pointing a gun at his neck. At the time he had his four year old daughter seated in the passenger seat. With callous disregard for her, one of you forced your way onto the seat and onto the girl, while the other one got into the back seat.

At gunpoint Mr Pham was forced to drive you away from the scene and later he and his daughter were forced out of the car, dumped on the side of the road and walked home in the rain. The effect on Mr Pham and his daughter as outlined in the victim impact statement has been profound. For the time being you escaped. However, with what was undoubtedly comprehensive and efficient police work, you were within a space of days all apprehended."

This account of the facts amply supports the learned sentencing Judge's view that the offences were extremely serious.

69 Piccolo had a significant criminal record at the time he came to be sentenced. There are approximately 100 convictions recorded between October 1989 and July 2004. Many of these were Children's Court convictions, but, even so, it is an alarming record of convictions.

70 On 28 April 2000, in the Supreme Court at Perth, Piccolo was convicted of two counts of robbery whilst armed. He was sentenced to 7 years and 5 years' imprisonment respectively, to be served concurrently. There was an additional conviction for stealing a motor vehicle for which a further 12 months was imposed, to be served cumulatively. That made a total of 8 years' imprisonment. The facts of Piccolo's convictions for armed robbery in April 2000 were briefly stated before the learned sentencing Judge by counsel for the prosecution. The offences had been committed in 1999 by Piccolo and others, and involved an armed robbery on a bank with a shotgun, a pistol and a stolen car. Bank staff were threatened during the course of the robbery.

71 Piccolo was on parole for three offences when, on 11 May 2004, he committed the offences of which he was convicted on 21 April 2006. Because Piccolo was on parole at the time of the commission of the offences, the learned sentencing Judge was clearly entitled to regard that factor as one of the four factors telling against parole.

Was there any error on the part of the sentencing Judge?

72 In all the circumstances, it was clearly open to the learned sentencing Judge to conclude (a) that the offences committed were extremely serious; (b) Piccolo had a significant criminal record; and (c) Piccolo, when released from custody under a release order made previously, had failed to comply with the order. In these circumstances, it is not surprising that the learned sentencing Judge declined to order eligibility for parole.

73 I do not consider that any error has been revealed on the part of the learned sentencing Judge. Put at its highest, the thrust of Piccolo's appeal is that considerations of rehabilitation of the offender and the interests of the community in having the offender rehabilitated outweigh the negative factors found by the learned sentencing Judge.

74 Whilst I accept that parole is an aid to rehabilitation and that rehabilitation of offenders is one of the key factors in the sentencing process, I am not satisfied that the learned sentencing Judge was in error in this case in concluding that three of the four factors which entitled him to decline to make an order for eligibility for parole were present.

75 In my view, the appellant has failed to show that there was any error on the part of the learned sentencing Judge in declining to order eligibility for parole. I would dismiss Piccolo's appeal against sentence.

Appeal against conviction - Noble (CACR 60 of 2006)

76 Noble's single ground of appeal against conviction is that the verdicts of the jury of guilty in relation to each count should be set aside on the basis that they are unreasonable or cannot be supported having regard to the evidence. The particulars given are:

"It was not open to the jury to be satisfied of the Appellant's guilt in respect of any of the charges, acting as a reasonable jury and reaching their verdict upon the evidence adduced by the State."

77 I have already given a brief summation of the facts by reciting what the learned sentencing Judge found when sentencing the three appellants. However, it is important for the purpose of Noble's appeal against conviction to set out more detailed facts.

78 At about 9.40 am on 11 May 2004, three men were involved in an armed robbery at the Newpark shopping centre in Girrawheen. The scene of the robbery was a jewellery store within the Newpark shopping centre. The jewellery business conducted at the store was owned by Hanh Min Le. He was in the store on the morning in question. What happened was vividly depicted on a surveillance videotape operating within the store.

79 Two of the three men involved in the robbery entered the jewellery store through the ceiling of a back room to the store. Earlier in the day, they had climbed onto the roof of the shopping centre. There, they cut a hole underneath an air-conditioning vent and entered the roof space. They were then directly over the jewellery store. They were disguised with dark balaclavas and they were wearing gloves. They were armed with weapons, one of which was a shotgun and the other a pistol. The pistol was later located.

80 The surveillance video reveals that the two armed men came through the ceiling of the back room of the jewellery store and entered the store at a time when Mr Le was there. He had been alerted to the noise from the back room and went to investigate. He quickly ran from the store. The first man through the ceiling ran into the jewellery store and began to smash cabinets. He went back to the area through which he had come, apparently urging his colleague to hurry up. Shortly afterwards, the colleague emerged. Between the two men, they smashed cabinets and stole jewellery.

81 Two Armaguard security officers who were in the Newpark shopping centre were alerted to what was happening. They were Paul Zanki and Darren John Kent. Mr Kent ran to the entrance of the jewellery store, armed with a pistol. He looked in and saw the robbers in the course of smashing the cabinets. He pointed his pistol at the offenders and shouted. There was an exchange of shots. The video shows that the offenders showed no inclination to desist when challenged and no hesitation in shooting at Mr Kent. He then ran from the scene. Shortly afterwards, the robbers left the jewellery store and ran toward the carpark of the Newpark shopping centre. The security officers followed. Mr Kent gave chase and fired a number of shots from his pistol. He ran out of ammunition and endeavoured to retreat from the scene.

82 The two robbers who had been in the jewellery store had joined a third person outside. He, too, was disguised with a balaclava. He was in a vehicle, waiting in the Newpark shopping centre carpark. He was clearly waiting as the "getaway driver", to drive the other two from the scene. On all the evidence, it seems clear that Hintz and Piccolo were the two inside the jewellery store. The prosecution contended that Noble was the getaway driver.

83 The person waiting as getaway driver (whom for convenience I shall term "the getaway driver") was in a stolen Holden Commodore sedan. That vehicle had been stolen at about 3.30 am on 11 May 2004. It was stolen from a house in Barridale Drive, Kingsley and, on the prosecution case, stolen for the purpose of being used as the getaway vehicle in the robbery. The owner of the vehicle was Stacey Walkden. Ms Walkden testified that she had parked the vehicle on the night of 10 May outside her father's home in Kingsley. The vehicle was almost empty of petrol and she was intending to fill it the next day.

84 The theft of the vehicle was observed by Michael Keating, who was driving along Barridale Drive. He saw a vehicle which looked like a Toyota Camry parked in the middle of the roadway, and he observed a person next to the Holden Commodore in the driveway. He saw persons who were wearing balaclavas. The vehicle in the driveway and the waiting vehicle then drove off from Barridale Drive towards Hepburn Avenue. The premises from which the Holden Commodore was stolen were close to the street in which Piccolo lived, and in the suburb of Kingsley, not far from the Newpark shopping centre in Girrawheen.

85 In the early hours of the morning of 11 May, Noble made three trips to the Gull service station in Mirrabooka Avenue, Alexander Heights. The evidence established that the first was sometime after 3 am, the second at 3.54 am and the third at 4.02 am. The time of the first trip was unclear because the time clock on the surveillance video was distorted. Noble was observed to purchase fuel on two occasions and to return a can on the third occasion. The service station was close to the residence of his sister. On one occasion when fuel was purchased, Noble was in a Kia Rio vehicle, which was accepted to be one and the same vehicle as that hired by Hintz on 30 April 2004.

86 The stolen Commodore sedan needed fuel if it was to be used as the robbery getaway vehicle.

87 I will deal in more detail later with the reasons given for Noble's purchase of fuel in the early hours of the morning of 11 May.

88 After the robbery, the getaway driver in the Holden Commodore sped from the carpark of the Newpark shopping centre, with his two accomplices in the vehicle. It had been raining during the course of the morning and the roadway was wet and slippery near the entrance to the Newpark shopping centre. As the Commodore sedan approached the entrance to the shopping centre, it paused and a series of shots were fired from it towards Mr Kent, who was then in the vicinity of the entrance. The prosecution case was that shots were fired at Mr Kent with the intent to bring about his death. The words "you're gone; you're gone" were heard. They came from the front passenger in the Holden Commodore. Mr Kent was hit with shotgun pellets, but he survived.

89 The driver of the Holden Commodore attempted to leave the carpark at speed, but must have lost control of it on the wet road surface. He collided with a West Australian Newspaper truck, which was stationary outside the entrance area of the shopping centre.

90 Following the collision, the three occupants of the Commodore jumped out. Two of them, whom the prosecution named as Hintz and Piccolo, went to a red Lancer, which was parked in the shopping centre carpark. The owner of the vehicle was Ngoc Sau Pham, and he was in the vehicle with his 3-year-old daughter. He was about to leave the shopping centre, when one of the two men suddenly appeared at the side of his vehicle. A pistol was pushed into the side of his neck, and he was told "Go, go". The two men jumped into the Lancer and Mr Pham was forced at gunpoint to drive them from the shopping centre carpark. He was directed through several streets in the suburb of Marangaroo to a Kent Street. There, he was told to stop the vehicle and he and his daughter were forced out of it. The two men then drove the vehicle away. It was observed to be speeding through the streets of Kingsley, and it was involved in a minor accident when it collided with a motorcycle ridden by one David Sullivan. A police officer driving along Barridale Drive, Kingsley, was forced to brake heavily to avoid a collision with the Lancer as it approached him at high speed. He followed the vehicle, but lost sight of it as it turned into Kingsley Drive. The vehicle was later found abandoned in the carport of a house in Willesden Avenue, Kingsley, shortly after 10 am that day.

91 The third occupant of the Holden Commodore (whom the prosecution alleged to be the getaway driver) was last seen running from the carpark. There is no evidence as to where he went, or how he left the area.

92 Ms Zara Pitt, on the day of the robbery lived at 15 Coolan Grove, Kingsley. This address was close to the location where the abandoned red Lancer was found. Between 10 am and 12 noon, Hintz and Piccolo arrived at her house. Piccolo entered the house and told Ms Pitt that he was having trouble with his girlfriend and wanted to telephone her. He used Ms Pitt's mobile phone to make the call. The calls were made to a mobile telephone, which the prosecution contended was owned by the girlfriend of Piccolo, one Kelly Measures. There was also a call to another mobile telephone number, which was owned by Piccolo, but clearly not in his possession at the time he made the call.

93 Piccolo and Hintz stayed at Ms Pitt's house most of the day, until about 5 pm when Ms Pitt's sister returned. She told Hintz that she did not want him there and he left.

94 The prosecution case was that Hintz and Piccolo had been involved in the robbery, had stolen the red Lancer, had abandoned it in the carport of a house in Kingsley, and then made their way to the house where Ms Pitt was living.

95 The getaway driver who left the crashed Holden Commodore was carrying a shotgun. If this was Noble, it was not alleged by the prosecution that he actually fired that shotgun at Mr Kent, because the getaway driver had been the driver of the Commodore and the person who fired the shotgun was in the front passenger seat. The stolen jewellery was left behind in the crashed Commodore.

96 On 12 May 2004, police conducted various surveillance operations. At 8.45 am, they observed a blue Commodore sedan owned by Ms Measures parked in the driveway of Noble's home. At 9 pm that evening three people were observed standing around Ms Measure's car and rummaging in the boot. The vehicle left Noble's address with two occupants in it. Later, it was observed at a service station and its occupants were Piccolo and Ms Measures. The prosecution case was that Piccolo had been at Noble's house on the evening of 12 May 2004.

97 On the morning of 13 May 2004, Ms Measures and Piccolo were observed driving along a roadway in Mirrabooka. The vehicle was stopped and when police searched it, they found a pistol on the floor by the front passenger seat. That is where Piccolo had been sitting. The pistol was later examined and found to be one of the weapons used at the scene of the robbery.

98 Also in the vehicle driven by Ms Measures were two-way radios, radio communication scanners, gloves, a black carry-bag and blue sports bag. The blue sports bag contained screwdrivers and blue-handled tinsnips. The black bag contained three mobile phone data sheets, one of which related to a mobile telephone which had been left in the stolen Holden Commodore.

99 Police accessed the telephone records for the various numbers which were revealed on the documents and found that two mobile telephones with numbers which ended respectively with the numerals 199 and 200 had been in constant contact with each other during the hours prior to the robbery. Approximately half an hour prior to the time of the robbery, the calls ceased until one call was made between the two mobile telephones just prior to the robbery at 9.40 am.

100 The prosecution alleged that the mobile telephone with the number ending with the numerals 199 was in the possession of the getaway driver in the white Holden Commodore and the mobile telephone with the number which ended with the numerals 200 had been in the possession of one of the robbers in the roof of the jewellery store. Contact had been made between the two persons to indicate that the robbery was about to begin.

101 There were many further investigations that were undertaken by investigating police. At the scene of the robbery, a black backpack was found behind the counter. It contained a 12-volt battery, six live shotgun cartridges, four white cotton gloves, a red and white striped rope, a small liquid crystal monitor with wires and a small pinhole camera. It was alleged that this camera was used by the robbers whilst they were in the ceiling so that they could observe what was happening in the jewellery store below.

102 The contents of the bag found at the jewellery store were examined by a forensic scientist. DNA profiles were found on one of the gloves and also on a stain on a rope. The DNA profile recovered from the glove matched the DNA profile of Hintz. The DNA profile recovered from the stain on the rope matched the DNA profile of Noble. Piccolo was excluded as a possible donor to either DNA profile. The prosecution case was that Hintz had handled the glove which had been found in the bag and Noble had handled the rope found in the bag. This was said to link them to the robbery because, at some point in time prior to the robbery, those items had been handled by those two persons.

103 There was no direct evidence that Noble was in any way involved in the robbery. The only evidence against him was circumstantial evidence. This being so, Noble could only be found guilty of the charges against him where guilt was the only rational inference that could be drawn from the circumstances: Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR 573 per Dawson J at 578.

104 The nature of circumstantial evidence was explained in Shepherd v The Queen by Dawson J (at 579) in the following terms:

"Circumstantial evidence is evidence of a basic fact or facts from which the jury is asked to infer a further fact or facts. It is traditionally contrasted with direct or testimonial evidence, which is the evidence of a person who witnessed the event sought to be proved. The inference which the jury may actually be asked to make in a case turning upon circumstantial evidence may simply be that of the guilt of the accused. However, in most, if not all, cases, that ultimate inference must be drawn from some intermediate factual conclusion, whether identified expressly or not. Proof of an intermediate fact will depend upon the evidence, usually a body of individual items of evidence, and it may itself be a matter of inference. More than one intermediate fact may be identifiable; indeed the number will depend to some extent upon how minutely the elements of the crime in question are dissected, bearing in mind that the ultimate burden which lies upon the prosecution is the proof of those elements."

105 There were a number of facts upon which the prosecution relied in seeking to persuade the jury beyond reasonable doubt that the only rational inference that could be drawn in the case was one of guilt of Noble. They were identified in submissions filed on behalf of the respondent in the following way:

"(a) a rope with the appellant's DNA was found in a bag (not belonging to the store owner) within the robbed jewellery store;

(b) the appellant was filmed filling a jerry can twice between 3.00 am and 4.00 am on the morning of the robbery, approximately 40 minutes after a car (which was later to be used as the first getaway car in the robbery) was stolen with an empty fuel tank;

(c) the last contact made between the co-offender's mobiles before they switched to the 'robbery' mobiles was between the appellant and co-offender Piccolo, calls which continued the following day after the robbery had concluded; and

(d) the close association between the appellant and the other two offenders, Piccolo and Hintz."

106 It is necessary to look closely at the four pieces of evidence relied upon by the prosecution. In doing so, it would be a mistake to consider whether in each case there was a reasonable hypothesis open which was consistent with the innocence of Noble. This is made clear in R v Hillier [2007] HCA 13; (2007) 233 ALR 634. The joint judgment of Gummow, Hayne and Crennan JJ in that case, stresses that features of the circumstantial case brought against an accused person should not be looked at in isolation from the evidence as a whole. In particular, it is wrong to examine each piece of circumstantial evidence to see whether there exists an hypothesis open which is consistent with the innocence of the accused person. Gummow, Hayne and Crennan JJ put it this way, at [38] - [39]:

"[38] All members of the Court of Appeal referred to this court's decision in M. Examination of the joint reasons of the majority of the Court of Appeal reveals, however, that the answer given by the majority to the question presented in M - whether 'upon the whole of the evidence [at Mr Hillier's trial] it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty' [M [1994] HCA 63; (1994) 181 CLR 487 at 494 - 495] - depended, in important respects, upon considering certain features of the circumstantial case sought to be made against Mr Hillier, in isolation from the evidence as a whole. In particular, the identification of facts which, when examined in isolation from other evidence led at the trial, were consistent with Mr Hillier's innocence, was treated as requiring the conclusion that it was not open to the jury to be satisfied of Mr Hillier's guilt beyond reasonable doubt.

[39] The ultimate conclusion reached by the majority was expressed [Hillier [2005] ACTCA 48 at [106]]. as being that 'there is a real possibility that another person was responsible' for Ms Hardwick's death. That, of course, is no more or less than a conclusion that it was not established beyond reasonable doubt that Mr Hillier was responsible for her death. Five, perhaps six, matters were identified [Hillier at [99]] as yielding one or more alternative hypotheses consistent with Mr Hillier's innocence. [Case references added]"

At [45] Gummow, Hayne and Crennan JJ expressed the view that "This reasoning was erroneous". See also McLeod v Greer [2003] WASCA 199 per Pullin J, at [24].

107 Earlier cases are to the same effect. Dawson J also makes it clear in Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR 573, at 585, that the question is whether, on the whole of the circumstantial evidence led by the prosecution, the guilt of an accused person has been established beyond reasonable doubt. There may be instances in which a trial Judge is required to identify an intermediate conclusion of fact and instruct the jury that it must be proved beyond reasonable doubt, but that will depend upon the particular case. Such an instruction will only be given where the conclusion is a necessary link in a chain of reasoning: Shepherd v The Queen per Dawson J, at 585.

108 In Chamberlain v The Queen [1984] HCA 7; (1984) 153 CLR 521, in a passage referred to by Dawson J in Shepherd v The Queen, at 584 - 585, Deane J, at 626 - 627, indicated how the question of proof of strands of circumstantial evidence is to be treated and how there is a need for the combination of circumstantial evidence to satisfy the jury beyond reasonable doubt that the only inference that can be drawn is one consistent with guilt before a verdict of guilty can be entered. The passage is in the following terms:

"There is certainly no requirement of the law that the members of a jury must examine separately each item of evidence adduced by the prosecution and reject it unless they are satisfied beyond reasonable doubt that it is correct. Nor is it the law that a jury is in all circumstances precluded from drawing an inference from a primary fact unless that fact is proved beyond reasonable doubt. If a primary fact constitutes an essential element of the crime charged, a juror must be persuaded that that fact has been proved beyond reasonable doubt before he or she can properly join in a verdict of guilty. Whether or not a juror must be satisfied that a particular fact has been proved beyond reasonable doubt will, however, otherwise depend not only on the nature of the fact but on the process by which an individual juryman sees fit to reach his conclusion on the ultimate question of guilt or innocence. If, for example, the case against an accused is contingent upon each of four matters being proved against him, it is obvious that each of those matters must be proved beyond reasonable doubt. Indeed, it would be appropriate for the presiding judge to emphasise to the jury in such a case that even a minimal doubt about the existence of each of those matters would be greatly magnified in the combination of all. On the other hand, if the guilt of an accused would be established by, or a particular inference against an accused could be drawn from, the existence of any one of two hundred different matters, each of which had been proved on the balance of probabilities, it would be absurd to require that a jury should disregard each of them unless satisfied, either in isolation or in the context of all of the facts, that any particular one of those matters had been proved beyond reasonable doubt."

109 Evidence of analysis of the rope for DNA was given at trial by Laurance Grant Webb, a forensic scientist employed by PathWest. He described the rope as white with red striping and in pretty good condition. It measured approximately 14.5 metres long and 7 millimetres in diameter. There was a red-brown stain, approximately 7 millimetres in diameter located approximately 13 centimetres from one end of the rope. This stain gave a positive reaction when chemically screened for blood. It was excised for DNA analysis. A full male DNA profile was gained from it. It was compared with buccal samples taken from the accused men and it matched the DNA profile of Noble.

110 Although the respondent's submissions speak of the DNA on the rope being "the appellant's DNA", the actual evidence was as follows:

"This DNA profile from the stain on the rope matched Bradley Ian Noble's DNA profile. The probability of this DNA profile occurring if the cellular material in the stain had come from someone other than and unrelated to Noble is less than one in 10 billion."

111 It was accepted at trial and on the hearing of the appeal that the stain on the rope did contain a DNA profile which matched that of Noble. There was, however, said to be a reasonable explanation or hypothesis consistent with the innocence of Noble. It was that Noble had left his DNA on the rope when using it in relation to his motor cycles. These motor cycles were stored in the garage at his home, to which Hintz had access. Either Hintz or a man named Chad James must have taken the rope and, hence, it was found in the bag at the scene of the robbery.

112 There was evidence that, on 11 May 2004, Noble was living with his sister Melissa. He was described by Ms Noble as "staying with me on and off at that time". Ms Noble testified that her brother had motor cycles which were kept in the garage at the house. She was asked whether she had ever seen any rope in the garage and she said she had. When asked about what colour or type the rope was, she said:

"There was a lot of rope in my garage. My ex-partner was a removalist for 11 years, so there was a lot of removalist's ropes, different kind of rope."

"Had you seen Bradley Noble with any rope?---Yes.

Did you ever see what he was using [it] for?---Tie down his motorbikes on the trailer and he has also towed his car when it's broken down, towed his car with a rope.

In that garage did anybody else have property in there?---Yes.

Who?---Nick Martin and David Hintz.

Okay, let's break that down. Who is Nick Martin?---My ex-partner.

And David Hintz?---Yes, and Bradley Noble."

113 Although it was contended for Noble that Hintz had access to the rope from Ms Noble's garage and, thus, may have taken a piece of rope on which a sample consistent with Noble's DNA was found, Ms Noble said in evidence that Hintz was not staying at her place on 10 or 11 May 2004.

114 Hintz gave evidence at his trial and said that he had intended to set up a mobile surveillance business known as the "One Stop Surveillance Shop". He needed, however, to do a computing course before he could get the business up and running. However, he said that he had acquired stock for the business, which included cameras, monitors, wiring, tools, screwdrivers, cutting equipment, gloves and cases. When asked where he kept this equipment he said it was "mainly between Melissa Noble's house and Jay Davies' house". He said that he used cotton gloves for work on circuit boards and he also used the gloves for motor cycle riding. He had three motor cycles, one of which was at an address in Yokine, one at Noble's and one at the house of Davies.

115 Hintz also testified that he had a friend named Chad James who had asked him to purchase mobile telephones a week or so prior to the robbery. James gave evidence that he was involved in the robbery, but none of the accused were. He said that he had received some mobile telephones from Hintz. They were at a garage at a house in Alexander Heights. He believed that Noble lived at the address.

116 From all of this evidence, it was suggested on behalf of Noble that the rope found at the scene of the robbery with a DNA profile on it which matched that of Noble could easily have been obtained by either Hintz or James, because both had access to the garage in which Noble's motor cycles were kept and where there was a substantial quantity of rope. It was contended that this rope must then have found its way into the bag found at the scene of the robbery.

117 There was clear evidence that Noble obtained fuel from a service station on two occasions on the morning of the robbery. This was shortly after the Holden Commodore Sedan had been stolen from Barridale Drive.

118 The prosecution case was that the Holden Commodore had run out of fuel and Noble had attended at a service station to collect fuel for it. The service station was a Gull service station in Mirrabooka Avenue, Alexander Heights, very close to Ms Noble's residence in Princeton Circle. The attendant at the service station testified that at a time after 3 am, but which could not be identified with certainty, a man (conceded by the defence to be Noble) arrived at the service station. He first borrowed a jerry can (a small silver drum holding about four litres) and filled it with fuel. He returned at 3.54 am, refilled the can and took more fuel. He came back with the empty can at 4.02 am.

119 On the first occasion he visited the service station, Noble came on foot, but on the second occasion in a motor vehicle. That motor vehicle was conceded by the defence to be a Kia Rio similar to that which had been hired by Hintz on 30 April 2004. No issue was drawn that it was one and the same vehicle.

120 The service station attendant had seen Noble come in on prior occasions to obtain fuel, but he was unable to recall any occasion when he had come in seeking two cans of fuel on the same night.

121 Ms Noble gave evidence that her brother used to get petrol for the motor cycles by going to the service station with a jerry can. He had a jerry can in the garage at her house. He would fill the jerry can at the service station and then fill the fuel tanks of the motor cycle.

122 Ms Noble said she had accompanied her brother to the service station "many a time" and she described the jerry can in the garage as a "black one and like a greenie one ... They were just normal jerry cans". On the occasion she went with him, he had taken the can.

123 There was evidence from Lynne Miller that she had been in a relationship with Noble not long before May 2004. She identified Noble as the person who was shown on surveillance video obtaining fuel at the Gull Alexander Heights service station in the early hours of the morning of 11 May 2004. She said she had previously been to that service station with Noble on an occasion when he took a jerry can for petrol. He was obtaining petrol for a motor cycle that he had.

124 The inference which counsel for the appellant suggested could be drawn from the evidence was that Noble had gone to the Gull service station in the early hours of the morning of 11 May 2004 to obtain fuel for his motor cycles. The reason for going at such an unusual hour was claimed to be that Noble's sleeping pattern was such that he slept during the day, but remained up late at night. Ms Noble gave evidence that he "Normally sleeps during the day and he's awake at night-time". In particular, around 11 May 2004, his sleeping pattern was said to be to sleep during the day and stay awake at night until late.

125 However, on the night of 10-11 May, Ms Noble went to bed at around 1.30 am on the morning of 11 May, at which time her brother was lying on the couch in the home theatre listening to music. He told her that he would like to be awoken in the morning when she got up, as he was going to play cards with a man named Jimmy at Jimmy's auntie's house that day. Jimmy was Chiminh Phun, in relation to whom there is other evidence.

126 If it was Noble's intention to play cards with "Jimmy" on the morning of 11 May it seems unlikely that he would have needed to have fuelled his motor cycles during the early hours of the morning of 11 May. Had he been going off-road motor cycle riding on the morning of 11 May, there may have been some more credence to the contention that this was why he was at the fuel station, but the fact was that there was no evidence at all that he had that intention. To the contrary, he was intending to play cards. Further, he was sleeping during the night, not during the day.

127 The Holden Commodore owned by Ms Walkden had been stolen only a short time before. That was the Holden Commodore which was used in the robbery. The Holden Commodore was almost empty of fuel and clearly needed to be refuelled. It may well have run out of fuel. Noble went to the Gull service station close to the house where his sister lived and obtained two cans of fuel. He made two separate trips for this purpose. One of those trips was in a Kia Rio vehicle which had been hired by Hintz on 30 April 2004. The prosecution case was that this evidence pointed to Noble being connected to the stealing of the Holden Commodore and the refuelling of that vehicle in preparation for its use during the robbery the following day.

128 Noble may not have actually participated in the theft of the Holden Commodore from its location in Barridale Drive, but it seems clear that he was involved in the events which immediately followed its theft, including its likely refuelling. The connection between Noble and Hintz was established by the fact that Noble was using Hintz's vehicle to collect at least one can of fuel from the Gull service station.

129 A document styled "Telephone Call Analysis" was tendered as exhibit VVV in the proceedings. It contains a record of selected calls between telephone numbers associated with the three accused men and various others. There are numerous calls between Noble and telephone numbers associated with Hintz/Piccolo during the day of 11 May 2004.

130 I refer to calls between Noble and Piccolo during the day of 11 May 2004 because there was evidence that Piccolo was known as "Johnny" and calls are shown on exhibit VVV from Noble to "Johnnys mobile [sic]".

131 The evidence in relation to "Johnnys mobile" was given by Trevor John Douglas and Jenine Royanna Measures. Mr Douglas testified that he had prepared the document which became exhibit VVV. He had designated calls to telephone number 0431 991 837 as calls to "Johnnys mobile". Ms Measures gave evidence that her sister, Kerry, was engaged to Johnny Piccolo in 2004. She identified Piccolo in court as one and the same person. She said that, at the time of her sister's engagement to Piccolo, she had a prepaid Motorola mobile telephone. It was replaced by a Nokia mobile telephone. The Motorola telephone was put in the cupboard because she did not need it. She gave a starter kit that came with the new telephone to Johnny Piccolo in or around February 2004. She was asked whether she knew the telephone number that came with the starter kit which she gave to Piccolo. She said that she did not know the number. She was then asked whether she ever had a mobile telephone number 0431 991 834. This reference was incorrectly stated by counsel for the prosecution. The number in question was 0431 991 837. She said she did not have such a number (which was obviously correct). She was then shown a document which indicated that that phone number 0431 991 837 was a number in her name. She said that she had given the starter kit to Piccolo and "set that up for him" because he did not know how to do it. Although she said that the telephone number 0431 991 837 was "not my telephone number", there was evidence which the jury was entitled to accept that she had, in fact, had the number 0431 991 837 at one time and had given it with the starter kit to Piccolo.

132 This was exhibit RR2, which was a letter from Virgin Mobile dated 2 December 2004, par 5 of which stated:

"By referring to customer records held by Virgin Mobile, I can state that mobile service number 0431991837 was in the name of Miss Jenine Measures with the listed address of 39 Bellport Parade, Mindarie WA 6030 and date of birth 22/01/1987 - Apppendix B."

133 In addition, Piccolo testified at trial that the reference to "Johnny mob" was a reference to his telephone. The number was correctly stated to be 0431 991 837. At the hearing of the appeal, counsel for Noble stated that the reference to "Johnny's mobile" was a reference to Piccolo's mobile phone.

134 The first relevant telephone call from Noble on 11 May 2004 is one made at 1.45.40 from Noble's mobile phone to Hintz's mobile phone. An SMS message was left. Thereafter, between 2.05.06 and 7.18.22 there were numerous telephone calls between mobile phones ending with the numerals 199 and 200. These were mobile telephones to which Hintz had subscribed, using false names. The prosecution case was that these telephones were acquired for and used in the course of the robbery. There is no way of knowing who was speaking in the course of those calls.

135 At 8.40.48, Noble telephoned his sister, Melissa, on her mobile phone. He did the same at 8.42.01. Then at 8.46.14, there was a call between the mobile phones ending with the numerals 200 and 199. At 8.46.45, Melissa Noble telephoned her brother. At 9.50.43, she telephoned Chiminh Phun. She telephoned him again at 9.53.04. At 9.56, Phun telephoned Ms Noble. All of these calls were on mobile telephones.

136 At 9.56.25, Piccolo telephoned Noble on his mobile phone. There was another call at 10.32.53. Then, at 10.54.21, Noble telephoned Piccolo on his mobile phone. He made further calls at 10.54.54, and at 11.06.48. At 11.10.50, he telephoned Piccolo's home telephone number.

137 This sample is sufficient to give an indication of the importance that the prosecution placed upon various telephone calls that were made on the morning of 11 May. The prosecution relied particularly on the fact that immediately before telephone calls began on the "robbery mobiles" (those telephones ending in the numerals 200 and 199), Noble had telephoned Hintz. That call (at 01.45.40) was made on the normal mobile telephones used by Noble and Hintz. The prosecution case was that, thereafter, there had been a switch to the "robbery mobiles". These mobile telephones were said to have been in use until the robbery concluded.

138 As I have indicated, there were numerous calls between Ms Noble and her brother and/or Chiminh Phun, and, later in the day, calls from Noble to Piccolo's mobile telephone.

139 The number of calls involving Noble on the one hand and either Hintz or Piccolo on the other, which occurred on the day of 11 May 2004 could be interpreted as involvement on the part of Noble in the robbery which was planned and which took effect.

140 Counsel for Noble pressed in his submissions the evidence that Noble had little or no time to have got himself involved in the robbery. He referred to the evidence of Ms Noble to the effect that, on the morning of 11 May, she took her daughter to school in time to begin school at 8.45 am. She left the house at about 8.40 am, at which time her brother was asleep on the lounge in the movie theatre room. She said that she woke him, and he left the house at around the same time as she did; namely, 8.40 am. He left in a white hire car, which she described as a Hyundai "four-door car". Ms Noble returned home after dropping her daughter at school. She did not see her brother. She did, however, speak to him. She said that she had telephoned him because she needed to speak to him about taking his tablets for epilepsy. She recalled that he got angry with her and hung up on her. She said that it was around 9 am when she made the call.

141 Ms Noble said that she made further calls that morning about her brother's medication. She spoke to one of his friends, whom she described as "Jimmy Foon". She said that she could hear her brother in the car yelling at Jimmy, to tell her to mind her own business. She testified that later Jimmy had rung her and told her not to worry about her brother because he had taken his tablets.

142 Ms Noble said that, when she spoke to "Mr Foon", it sounded as if he was in a vehicle. She could hear music and it sounded like the car was travelling.

143 The thrust of Mr Grace QC's submission on behalf of Noble was that if Ms Noble's testimony was accepted, there was little time for Noble to have been involved in the robbery at 9.42 am. This was because Ms Noble had observed Noble asleep at her house at approximately 8.40 am when she woke him as she left with her child.

144 However, the scene of the robbery was only about two kilometres from the location of Ms Noble's house, and there was time for Noble to have joined with Hintz and Piccolo in the robbery. If Noble was the getaway driver, he must have collected the stolen Holden Commodore from wherever it had been left and then made his way to the scene of the robbery.

145 On all the evidence, it is clear that Noble had the opportunity to be involved in the robbery. He left his sister's house at approximately 8.40 am in the Kia Rio sedan which had been hired by Hintz. He had the opportunity to drive that vehicle to the stolen Holden Commodore, collect it and thence drive, either with or without the other two robbers, to the scene of the robbery. The robbery occurred at 9.42 am and there was a full hour within which Noble had the opportunity to get to the Newpark shopping centre. It was only about two kilometres from where he lived. Piccolo's residence was in Kingsley, two or three suburbs distant from Girrawheen, but within the general vicinity.

146 In my view, the fact that Noble was in contact with Hintz in the early hours of the morning of 11 May (at 1.45.40), and then, later on the day of 11 May after 11 am, made numerous telephone calls to Piccolo's mobile phone and Piccolo's home phone is consistent with his involvement in the robbery with Hintz and Piccolo. The calls made after 11 am are explicable on the basis that he was anxious to find out what had happened to Hintz and Piccolo, from whom (if he was the getaway driver) he had separated in the carpark in the Newpark shopping centre.

147 Noble did not testify in his defence at the trial. He gave no explanation for the telephone calls. On one view of it, it could have been purely coincidental that he was in contact with or endeavouring to contact Hintz and/or Piccolo in the early hours of the morning of 11 May and then later during the day of 11 May.

Close association between Noble, Piccolo and Hintz

148 This piece of circumstantial evidence is really covered by what I have already said.

149 Mere association between Noble, Piccolo and Hintz could not, of itself, implicate him in the robbery which occurred on the morning of 11 May 2004. Even "close association" would be insufficient in itself. It is the involvement of Noble in telephone calls to Hintz and/or Piccolo beginning in the early hours of the morning with a call to Hintz and then later continuing after the robbery that is the telling evidence against him. Coupled with this, is the fact that he was seen in the early hours of the morning of 11 May obtaining fuel on two separate occasions from a service station close to where he was staying. On the first occasion he came on foot and on the second in the Kia Rio vehicle which had been hired by Hintz. He did not need the fuel for motor cycle riding on the day of 11 May, because, on the evidence of Ms Noble, he was playing cards with a friend that day. The prosecution case was that he was obtaining fuel for the purpose of refuelling the stolen Holden Commodore sedan which had been stolen from Barridale Drive shortly beforehand. It was contended that the vehicle was being refuelled for the purpose of use as the getaway vehicle in the robbery.

150 The combination of the evidence against Noble is such that it reveals a very close association between him and the two other offenders in the period before and after the robbery. In addition, there is evidence of active steps taken by Noble which are explicable by involvement in the robbery itself.

151 This was not a case in which it was necessary for each of the four pieces of circumstantial evidence to be proven beyond reasonable doubt before the jury could conclude that the only reasonable hypothesis open was one consistent with the guilt of Noble. No one fact constituted an essential element of the crime charged so as to require proof of it beyond reasonable doubt.

152 The question is whether the jury could be satisfied beyond reasonable doubt of Noble's guilt. Because it was a circumstantial case, the jury could not be satisfied beyond reasonable doubt on the circumstantial evidence unless no other explanation than guilt was reasonably compatible with the circumstances: R v Hillier (supra) per Gummow, Hayne and Crennan JJ (at [46]).

153 In R v Hillier (supra) Gummow, Hayne and Crennan JJ (at [47]) made reference to Plomp v The Queen and then (at [48]) said:

[48] Often enough, in a circumstantial case, there will be evidence of matters which, looked at in isolation from other evidence, would yield an inference compatible with the innocence of the accused. But neither at trial, nor on appeal, is a circumstantial case to be considered piecemeal. As Gibbs CJ and Mason J said in Chamberlain [(1984) [1984] HCA 7; 153 CLR 521 at 535].

'At the end of the trial the jury must consider all the evidence, and in doing so they may find that one piece of evidence resolves their doubts as to another. For example, the jury, considering the evidence of one witness by itself, may doubt whether it is truthful, but other evidence may provide corroboration, and when the jury considers the evidence as a whole they may decide that the witness should be believed. Again, the quality of evidence of identification may be poor, but other evidence may support its correctness; in such a case the jury should not be told to look at the evidence of each witness separately in, so to speak, a hermetically sealed compartment; they should consider the accumulation of the evidence: cf Weeder v R [(1980) 71 Cr App R 228 at 231]

Similarly, in a case depending on circumstantial evidence, the jury should not reject one circumstance because, considered alone, no inference of guilt can be drawn from it. It is well established that the jury must consider 'the weight which is to be given to the united force of all the circumstances put together': per Lord Cairns, in Belhaven and Stenton Peerage, [(1875) 1 App Cas 278 at 279] cited in Reg v Van Beelen [(1973) 4 SASR 353 at 373]; and see Thomas v The Queen [[1972] NZLR 34 at 37 - 38, 40] and cases there cited.'

And as Dixon CJ said in Plomp [(1963) [1963] HCA 44; 110 CLR 234 at 242]:

'All the circumstances of the case must be weighed in judging whether there is evidence upon which a jury may reasonably be satisfied beyond reasonable doubt of the commission of the crime charged. There may be many cases where it is extremely dangerous to rely heavily on the existence of a motive, where an unexplained death or disappearance of a person is not otherwise proved to be attributable to the accused; but all such considerations must be dealt with on the facts of the particular case. I cannot think, however, that in a case where the prosecution is based on circumstantial evidence any part of the circumstances can be put on one side as relating to motive only and therefore not to be weighed as part of the proofs of what was done'. [Emphasis added] [Case references added]"

154 It is necessary that the evidentiary circumstances to inculpate an accused person must bear no reasonable explanation other than one consistent with guilt. It was put in Plomp v The Queen [1963] HCA 44; (1963) 110 CLR 234, by Dixon CJ (at 243, quoting from Martin v Osborne [1936] HCA 23; (1936) 55 CLR 367, at 375) as follows:

"If an issue is to be proved by circumstantial evidence, facts subsidiary to or connected with the main fact must be established from which the conclusion follows as a rational inference. In the inculpation of an accused person the evidentiary circumstances must bear no other reasonable explanation. This means that, according to the common course of human affairs, the degree of probability that the occurrence of the facts proved would be accompanied by the occurrence of the fact to be proved is so high that the contrary cannot reasonably be supposed. The circumstances which may be taken into account in this process of reasoning include all facts and matters which form constituent parts or ingredients of the transaction itself or explain or make intelligible the course of conduct pursued."

155 When looking to see whether there is an alternative hypothesis consistent with the innocence of the accused person, it is important to appreciate that to be reasonable, an hypothesis must possess some degree of acceptability or credibility, and not be fanciful, impossible, incredible, not tenable, too remote, or too tenuous: see Parker v The Queen, unreported; CCA SCt of WA; Library No 960740; 20 December 1996, where Malcolm CJ, at 20, made reference to a number of the decided cases.

156 In Plomp v The Queen (supra), Dixon CJ said (at 243):

"In the present case it appears to me that if the jury weighed all the circumstances they might reasonably conclude that it would put an incredible strain on human experience if Plomp's evident desire to get rid of his wife at that particular juncture, presaged as it was by his talk and actions, were fulfilled by her completely fortuitous death although a good swimmer and in circumstances which ought not to have involved any danger to her."

157 This passage from Dixon CJ's judgment in Plomp v The Queen (supra) is equally applicable to the present case. It would, in my view, put an "incredible strain on human experience" to accept that, in circumstances in which (a) a rope with the appellant's DNA was found in a bag within the jewellery store; (b) the appellant visited a service station in the early hours of the morning of the robbery to obtain fuel; (c) a stolen vehicle used as the getaway car in the robbery required fuel; (d) there was telephonic communication between Noble, Piccolo and/or Hintz prior to and after the robbery; (e) there was a known close association between Noble, Piccolo and Hintz, when seen in combination and in totality, could have done other than satisfy a jury beyond reasonable doubt of Noble's guilt. There was, in my view, no other explanation than guilt which was "reasonably compatible with the circumstances": R v Hillier (supra) (at [46]), citing Shepherd v The Queen (supra) per Dawson J (at 579).

158 In my view, the jury was entitled to conclude that the four pieces of circumstantial evidence, when considered in combination, established beyond reasonable doubt that only one inference could be drawn and that was an inference consistent with the guilt of Noble: Shepherd v The Queen (supra) per Dawson J at 585.

159 I consider that, on all of the evidence adduced by the prosecution in relation to Noble, it was open to the jury to be satisfied beyond reasonable doubt of his guilt. In my opinion, no other explanation than guilt was reasonably compatible with the circumstances.

160 No complaint is made about the content of the learned trial Judge's directions to the jury. However, it is important to see just what the learned trial Judge said to the jury about the case against Noble. His Honour concentrated on "two pieces of evidence". He said:

"As to the accused Noble, the state principally points to two pieces of evidence: the presence of Mr Noble's DNA on a rope found at the scene of the robbery and Mr Noble's behaviour the previous night, purchasing fuel, not in one of his own jerry cans but in a can owned by the service station and he purchased fuel not once, but twice, which is said to be unusual. A car was seen similar to a Kia, a white Kia, that he had hired or that had been hired.

The state reminded you that Ms Walken had said that her car was empty. In fact her evidence was that the empty light was on and she was planning to leave early the next morning to get petrol ... "

161 In summing up the case advanced for Noble by his counsel at trial, the learned trial Judge said:

"For Mr Noble, Mr Tudori laid stress on the phone calls and the evidence of Melissa Noble. Clearly you will have to examine carefully the phone records and those phone calls. Ms Noble said that Noble had peculiar sleep patterns due to his epilepsy when he was often awake at night and asleep during the day. She said there were past occasions when he had been to get a supply of fuel at night, as did Ms Cantatore, his former girlfriend. She woke Mr Noble at 8.40 and he said he was going off to play cards at the home I think of Loch Nguyen. You will have a look at exhibit - I think it's VVV - and the sequence of calls between Ms Noble and Phun. I may have the name wrong; I think it was Mr Phun that he was going off to play cards with.

Mr Tudori points out that the rope is a tie-down rope. Necessarily it also is portable. It was left in the garage of Mr Noble and you could not draw an inference beyond reasonable doubt that the rope ties Mr Noble in with the crime and that you would have to have a doubt. In fact Mr Tudori says if you examine carefully all of the evidence, especially the phone calls, then the prosecution case in fact exonerates Mr Noble."

162 Where an appellant contends that verdicts of the jury are unreasonable and cannot be supported, having regard to the evidence, the test for the appeal court is well established. It was set out in M v The Queen [1994] HCA 63; (1994) 181 CLR 487, at 492 - 493, as follows:

"The question is one of fact which the court must decide by making its own independent assessment of the evidence and determining whether, notwithstanding that there is evidence upon which a jury might convict, 'none the less it would be dangerous in all the circumstances to allow the verdict of guilty to stand'. But a verdict may be unsafe or unsatisfactory for reasons which lie outside the formula requiring that it not be 'unreasonable' or incapable of being 'supported having regard to the evidence'. A verdict which is unsafe or unsatisfactory for any other reason must also constitute a miscarriage of justice requiring the verdict to be set aside.

...

Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations." [Footnotes omitted.]

163 The test so formulated in M v The Queen was accepted as the appropriate test in Jones v The Queen (1997) 191 CLR 439, and again in MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606. In the latter case, Gleeson CJ, Hayne and Callinan JJ, at [25] said:

"Where it is argued that the verdict of a jury is unreasonable, or cannot be supported, having regard to the evidence, the test to be applied is that stated by Mason CJ, Deane, Dawson and Toohey JJ in their joint judgment in M v The Queen. That test was accepted and applied by this Court in Jones v The Queen. In M, it was pointed out that it was once common for expressions such as 'unsafe or unsatisfactory', or 'unjust or unsafe', or 'dangerous or unsafe' to be used in place of the language of s 6(1) of the Criminal Appeal Act, and corresponding statutes in other jurisdictions, and that such expressions might cover different parts of the statutory provision, referring, for example, either to a verdict that is unreasonable, or cannot be supported, having regard to the evidence, or to a miscarriage of justice because an accused has not had a fair trial according to law." [Footnotes omitted.]

164 For the reasons that I have given, I am satisfied that, on the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that Noble was guilty. Further, it is obvious that this was a case in which the jury had, at trial, the benefit of having seen and heard various witnesses, all of whom, in the case of Noble, were called by the prosecution. It was for the jury to decide what portions, if any, of the evidence of those witnesses to accept and what portions, if any, not to accept. The evidence of Ms Noble is very much in point. Although some of her evidence may, on one view, have been favourable to the case of Noble, much of it was not. It was for the jury to determine what aspects of her evidence it accepted and which, if any, it rejected.

165 I am satisfied that, on the whole of the evidence, it was open to the jury to reach verdicts of guilty in respect of Noble. Matters raised by the defence and raised on this appeal were not, in my view, sufficient to raise a reasonable doubt about the guilt of Noble in the minds of the jury. Accordingly, I would dismiss Noble's appeal against conviction.