//
[2015] WASCA 136
General information, not legal advice.
Court of Appeal (WA)
2015-06-30
Martin CJ
Original judgment source is linked above.
The application of the proviso if the s 79C point had been made out
251 The State submitted that if ground 1 was upheld to the extent that S's statement, as recorded in the Sir Charles Gairdner Hospital notes, was admissible pursuant to s 79C of the Evidence Act, the proviso contained in s 30(3) of the Criminal Appeals Act should be applied (appeal ts 67). In case I am wrong in my analysis of the s 79C point, I will deal with the State's submission.
252 I gratefully adopt the following statements made by Buss JA in LFG v The State of Western Australia [2015] WASCA 88 [378] - [380] as to the proper application of the proviso:
Section 30(3) of the Criminal Appeals Act 2004 (WA) provides that this court must allow an appeal against conviction by an offender if, in its opinion:
(a) the verdict of guilty on which the conviction is based should be set aside because, having regard to the evidence, it is unreasonable or cannot be supported;
(b) the conviction should be set aside because of a wrong decision on a question of law by the judge; or
(c) there was a miscarriage of justice.
However, by s 30(4), despite s 30(3), even if a ground of appeal might be decided in favour of the offender, this court may dismiss the appeal if it considers that 'no substantial miscarriage of justice has occurred'.
In Baiada Poultry Pty Ltd v The Queen [2012] HCA 14; (2012) 246 CLR 92, French CJ, Gummow, Hayne and Crennan JJ reiterated that an appellate court must undertake the task of determining whether to apply the proviso to the Australian common form criminal appeal statute in the same manner as it would decide whether the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence [27]. The task of determining whether no substantial miscarriage of justice has actually occurred must be undertaken on the whole of the trial record including the jury's verdict of guilty [27]. Their Honours then made two further points. First, the appellate court, in assessing the significance to be given to the jury's verdict of guilty, must pay proper regard to the issues the jury were directed to decide in order to arrive at a verdict of guilty [28]. Secondly, the statement by Gleeson CJ, Gummow, Kirby, Hayne, Callinan and Heydon JJ in Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300 [44], that the proviso cannot be engaged 'unless the appellate court is persuaded that the evidence properly admitted at trial proved, beyond reasonable doubt, the accused's guilt of the offence on which the jury returned its verdict of guilty', is a negative proposition [29]. The statement enunciates a necessary but not sufficient condition for the application of the proviso. French CJ, Gummow, Hayne and Crennan JJ observed in Baiada Poultry:
As this Court's decision in AK v Western Australia ((2008) [2008] HCA 8; 232 CLR 438 at 457 [58]) shows, demonstration that a chain of reasoning can be articulated that would require the verdict reached at trial does not always permit, let alone require, the conclusion that no substantial miscarriage of justice actually occurred [29].
See also Reeves v The Queen [2013] HCA 57; (2013) 88 ALJR 215 [50] ‑ [51] (French CJ, Crennan, Bell & Keane JJ).
253 I am satisfied beyond reasonable doubt that no substantial miscarriage of justice would have occurred by reason of the failure to admit, as evidence of its truth, the statement made by S as recorded in the Sir Charles Gairdner Hospital notes.
254 I will not repeat my analysis of the evidence with respect to ground 2. It is sufficient for me to say that I am, based upon that analysis, satisfied beyond reasonable doubt of the appellant's guilt of the counts set out in the indictment. Further, for the reasons I set out in [226] hereof, and while, even if the evidence of S's statement as recorded in the hospital notes was admissible, it was, in my view, highly unreliable as to its accuracy and therefore of little, if any, weight. Its admission, either by itself or in combination with the other evidence, does not change my view as to the appellant's guilt.
255 Finally, any failure to admit the evidence pursuant to s 79C of the Evidence Act was not, in the circumstances, of such a nature that precludes the application of the proviso.
256 Had the s 79C point been made out and, to that extent, ground 1 had been allowed, I would have applied the proviso.
257 While I would give leave to appeal in respect of each ground, neither has been made out. Accordingly, Mr Poland's appeal against conviction must be dismissed.
259 As I have said, each of the parties has sought leave to appeal against sentence.
260 Mr Poland's sole proposed ground of appeal against sentence is that the total effective sentence infringed both limbs of the totality principle. He does not challenge any of the individual sentences. The State alleges that the individual sentences for counts 2 and 3 (aggravated grievous bodily harm and aggravated sexual penetration without consent) were manifestly inadequate (grounds 1 and 2) and that the total effective sentence infringed the first limb of the totality principle (ground 3).
261 In each appeal, the question of leave was referred to the hearing of the appeal.
262 The learned sentencing judge found that Mr Poland was entirely responsible for 'everything that happened' to S (ts 1558).
263 Her Honour found that, sometime after 10.50 pm on 14 October 2011, Mr Poland pounded on the door at 258B Grand Promenade, Dianella. Before S got to the door, Mr Poland kicked it open. Mr Poland demanded money and jewellery. After Mr Poland entered the unit, he struck S and engaged in a sustained and savage beating of him, using at least one, and probably two, different weapons. Her Honour found that Mr Poland knew that he was beating an elderly man (ts 1559). Her Honour found that Mr Poland beat S to prevent him from calling police or alerting neighbours. She said that the violence inflicted upon S was 'absolutely senselessly excessive' (ts 1560).
264 In addition to beating him, Mr Poland anally penetrated him with an object, perforating his rectum. Her Honour described this act as a 'senseless, gratuitous act of violence and cruelty' (ts 1561).
265 Her Honour described in detail the injuries S sustained, noting that he 'suffered grievous bodily harm on several counts'. She noted that, as a result of the injury to S's rectum, he has been left with a colostomy pouch and is now blind in one eye.
266 Her Honour was careful to differentiate between the grievous bodily harm (the subject of count 2), and the perforated rectum (the subject of count 3).
267 Her Honour observed that Mr Poland rendered no assistance to S.
268 In relation to the burglary, her Honour found that Mr Poland ransacked the unit, bundled the items he had stolen and then concealed them. Her Honour found that when J, W and O returned to the unit, Mr Poland was pretending to be an innocent passerby who was trying to hail a taxi. Her Honour said that Mr Poland told a series of lies in his video record of interview with the police.
269 Her Honour remarked on the adverse effects that Mr Poland's offending has had upon S and W. She said that S's life has been irrevocably changed. He must now use a walking frame. S has had to leave the accommodation in which he lived and move in with W because he requires constant care. He finds it impossible to read and write and has stopped driving. S's short-term memory has been affected and his ability to play music has deteriorated. Her Honour said:
In short, [S] has gone from being an 89-year-old gent, living his life with a pretty decent amount of independence and quality of enjoyment of life, to being someone who now has to live with family, who cannot do many of the activities he used to enjoy, and who is painfully aware that he is now dependent on others for many of his basic day-to-day needs, such as showering and changing the colostomy bag. And his family have had to change their lives to meet his needs (ts 1566).
270 W has been severely affected by the offences. She has been diagnosed with post-traumatic stress disorder and depression.
271 Her Honour described the burglary as blatant and brazen (ts 1573). She said that counts 2 and 3 were within 'the worst case category' of offending (ts 1573).
272 Mr Poland was 30 years of age when he committed the offences and 32 years of age when he was sentenced. His childhood was marred by victimisation and abuse.
273 Mr Poland has used a variety of illicit drugs over the years, as well as alcohol and benzodiazepines.
274 Mr Poland has a lengthy criminal history. As an adult, he has been convicted of assault occasioning bodily harm and burglary. Her Honour observed that violence towards total strangers was not out of character and that committing burglaries was 'positively in character' (ts 1568). Her Honour remarked:
Your record overall reflects a violent man who has no respect for the law or the rights of his fellow human beings.
275 The learned sentencing judge had the benefit of a pre-sentence report and psychological report. Mr Poland denied any responsibility in relation to the offences, including having ever been inside the unit. This is despite his plea of guilty to the burglary and to the presence of his DNA inside the unit. Paradoxically, Mr Poland told the clinical psychologist that he was so heavily intoxicated on the night in question that he had little recollection of what he had done.
276 In the opinion of the clinical psychologist, the anal penetration was likely not a reflection of any sexual deviant interest, but, rather, was fuelled by violence and perhaps a desire to debase his victim.
277 In the opinion of the psychologist, it is likely that Mr Poland has an antisocial personality disorder. Mr Poland's overall score, using the HCR-20 tool, was predictive of a high risk of reoffending in a violent manner.
278 Her Honour expressed the view that there was not much to be said in mitigation. She acknowledged the plea of guilty in respect of count 1. However, it came at a very late stage in the face of overwhelming forensic evidence. Her Honour allowed a 5% discount for the plea pursuant to s 9AA of the Sentencing Act 1995 (WA) (ts 1572). Her Honour considered Mr Poland's childhood abuse as mitigatory. Her Honour said that Mr Poland was not entitled to mitigation by reason of his age, insight or willingness to take responsibility for his offending (ts 1573 - 1575).
279 Her Honour noted that the maximum penalty was 20 years' imprisonment for count 1; 14 years' imprisonment for count 2; and, 20 years' imprisonment for count 3.
280 Her Honour considered the dominant sentencing considerations were personal and general deterrence, as well as public protection. As to general deterrence, her Honour said that it was necessary to send a message to the community that vicious offences against the elderly and vulnerable will be met with serious punishment (ts 1575). As to public protection, her Honour said that Mr Poland represented 'a danger to the community' and posed 'a high risk of violently reoffending' (ts 1575).
281 Although the three offences occurred in the one night and were linked, her Honour considered it inappropriate to apply the one transaction rule, or to make the sentences concurrent.
282 Her Honour reasoned that, purely for reasons of totality, the sentence for count 1 (the burglary) 'will be less than it deserves' (ts 1576). She then went on to impose the sentences referred to earlier in these reasons (ts 1576).
General principles applicable to appeals against sentence
283 This court has no warrant to substitute its own opinion for that of the sentencing judge merely because it would have exercised the discretion differently: Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 [15]. This court can only intervene if it is demonstrated that the court below made a material error, either express or implied. In the present case, each appeal relies upon implied error only. It has not been alleged that the learned sentencing judge made some error of legal principle or fact.
284 There are special principles applicable to State appeals. They are well known and need not be repeated. I bear in mind that the principle of double jeopardy, which once applied to State appeals, has now been abolished: s 41(4)(b) of the Criminal Appeals Act. This court has a residual discretion under s 31 of the Criminal Appeals Act to decline to allow a State appeal against a sentence that is erroneously lenient.
285 Before an individual sentence can be said to be manifestly inadequate or excessive, or the total effective sentence be found to infringe the totality principle, it must be established that the sentence is unreasonable or plainly unjust: House v The King (1936) 55 CLR 499 and Barbaro v The Queen [2014] HCA 2; (2014) 236 A Crim R 116 [26].
286 The orthodox approach to the question of whether an individual sentence is manifestly inadequate or excessive is to examine the sentence having regard to the maximum sentence for the offence, the gravity of the offending conduct in the scale of seriousness, sentences customarily imposed in comparable appellate cases and the personal circumstances of the offender: Chan v The Queen (1989) 38 A Crim R 337, 342.
287 The totality principle comprises two limbs. The first limb is that the total effective sentence must bear a proper relationship to the overall criminality involved in all the offences, viewed in their entirety and having regard to the circumstances of the case, including those referable to the offender personally. The second limb is that the court should not impose a 'crushing' sentence. The word 'crushing' in this context refers to the destruction of any reasonable expectation of a useful life after release. The practical effect of the totality principle is ordinarily to arrive at an aggregate sentence that is less than that which would be arrived at simply by adding up all of the appropriate individual sentences.
288 It is relevant in the consideration of each appeal to have regard to any comparable cases. Such cases are a yardstick against which the sentences in question may be measured. However, the range of sentences imposed in other cases does not mark out the boundaries of the exercise of a sound sentencing discretion in an individual case. The guidance that is afforded by comparable cases is flexible rather than rigid. Ultimately, each case depends upon a careful consideration of its own facts and circumstances.
Analysis of Mr Poland's appeal against sentence
289 It was submitted on behalf of Mr Poland that the accumulation of each of the sentences imposed by her Honour failed to take account, or any proper account, of the fact that the offences occurred as part of the one transaction. It was submitted that her Honour should have made each of the sentences wholly or partly concurrent to give effect to both limbs of the totality principle.
290 These submissions must be rejected. The one transaction rule is not a rule at all. It will not always be the case that individual offences, when committed as part of the one episode, will attract concurrent sentences. This is because the ultimate requirement when sentencing a person who has committed multiple offences is to impose punishment which is a just and proper reflection of the offender's total criminality: Lesay v The State of Western Australia [2011] WASCA 154 [21]. In any particular case, how this is achieved will vary. Some or even total accumulation may be required, even when the offences are committed as part of one episode of criminal conduct.
291 I will not repeat the circumstances of the offending. Looked at overall, these were horrendous offences committed upon an elderly and extremely vulnerable man which have had serious consequences not only for him, but also for those who care for him. Two of the offences were, rightly in my view, characterised as being in the worst category of their kind. There was little that could be said by way of mitigation. The plea of guilty on count 1 came very late. Mr Poland's personal circumstances were, generally, unfavourable. Her Honour was entirely correct to emphasise personal and general deterrence, as well as the protection of the public.
292 I have reviewed a number of cases which have involved overall offending with some factual similarity to the present case, namely Keating v The State of Western Australia [2007] WASCA 98; (2007) 35 WAR 1; Cooper v The State of Western Australia [2009] WASCA 37; Pollock v The State of Western Australia [2009] WASCA 121; Royer v The State of Western Australia [2009] WASCA 139; (2009) 197 A Crim R 319 and THG v The State of Western Australia [2012] WASCA 139. I immediately put to one side Keating because, on any analysis, the facts and circumstances of that case - which resulted in a total effective sentence of 24 years' imprisonment without parole - were worse than the present case.
293 It is unnecessary to analyse the facts and circumstances of the other cases I have mentioned. It is sufficient to say that I do not regard the total effective sentence imposed upon Mr Poland as being inconsistent with those cases.
294 Without doubt, the total effective sentence imposed upon Mr Poland was substantial. However, a proper exercise of the sentencing discretion required the imposition of a substantial sentence. I am far from persuaded that the total effective sentence in the present case infringed the first limb of the totality principle.
295 Nor have I been persuaded that the total effective sentence infringed the second limb of the totality principle. I do not regard it as 'crushing', as that term is to be understood.
296 Mr Poland has not demonstrated implied error by the learned sentencing judge. As error has not been demonstrated, this court cannot intervene.
297 I would not give leave to appeal. Mr Poland's appeal must be dismissed.
Analysis of the State's appeal against sentence
298 The crux of the State's submissions in respect of its appeal against sentence is that there was a disconnection between her Honour's finding that counts 2 and 3 were in the worst category, and the individual sentences for those offences, as well as the total effective sentence, ultimately imposed. Senior counsel for the State conceded that, if the individual sentences on counts 2 and 3 were increased, there would have to have been some concurrency, a position echoed by counsel for Mr Poland (appeal ts 78, 84).
299 The real issue raised by the State is the question of totality. As this court explained in Giglia v The State of Western Australia [2010] WASCA 9 [40], where there is a challenge on totality grounds, the severity of the sentence imposed on an individual count will usually fall to be assessed in light of the sentences imposed in respect of the other counts and its contribution to the total effective sentence.
300 The characterisation that an offence is in the worst category allows, although does not require, a sentencing judge to impose the maximum penalty or something approaching it: The State of Western Australia v BLM [2009] WASCA 88; (2009) 40 WAR 414 and GHK v The State of Western Australia [2014] WASCA 19 [46]. As was pointed out in GHK, whether, in a particular case, a sentencing judge is required to impose the maximum penalty or something approaching it for an individual offence within the worst category will depend upon the application of settled sentencing principles to the facts and circumstances of the individual offence, and the personal circumstances and antecedents of the offender.
301 Standing by themselves, and having regard to the finding that the offences were in the worst category, I would have considered the individual sentences for counts 2 and 3 to be manifestly inadequate. However, each sentence does not stand by itself. It must be viewed in light of the total effective sentence imposed upon Mr Poland.
302 Having regard to the overall criminality, and taking into account all of the relevant circumstances, including those referable to Mr Poland, I regard the total effective sentence imposed upon him as being towards the lower end of an appropriate exercise of the sentencing discretion. However, that is an insufficient basis for this court to intervene. I would not interfere with the overall sentence that was imposed upon Mr Poland. While I would give leave to appeal with respect to all three grounds of the State's appeal, I have concluded that none of the grounds have been made out, with the consequence that the appeal must be dismissed.
303 The orders I would make in respect of Mr Poland's appeal against sentence are:
304 The orders I would make in respect of the State's appeal against sentence are:
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
[1] The NAFIS database includes fingerprints taken from arrested persons. There are over 4 1/2 million individuals on the database nationally. Western Australia makes up about 460,000 of those individuals (ts 808 ‑ 809).
[2] Counsel for Mr Poland abandoned a claim that First Class Constable Wooler's notes were also admissible under s 79C (appeal ts 7, 18).
7 On arraignment at his trial, Mr Poland entered a plea of guilty to the allegation of burglary and to the circumstances of aggravation (count 1), save for the circumstance of aggravation that he did bodily harm to S. To that allegation, he pleaded not guilty (ts 105 - 106). No issue has been taken in this appeal to this procedure: see Gillespie v The State of Western Australia [2013] WASCA 149; (2013) 45 WAR 207. Mr Poland pleaded not guilty to count 2 (aggravated grievous bodily harm) and count 3 (aggravated sexual penetration without consent) (ts 106).
158 This court must allow an appeal if, in its opinion, a verdict of guilty should be set aside because, having regard to the evidence, it is unreasonable or cannot be supported: s 30(3)(a) Criminal Appeals Act 2004 (WA). Where a court of criminal appeal sets aside a verdict on this ground, it frequently does so, expressing its conclusion in terms of a verdict which is unsafe or unsatisfactory: M v The Queen [1994] HCA 63; (1994) 181 CLR 487, 492.
159 The relevant legal principles to be applied in respect of a claim that a verdict of guilty should be set aside because it is unreasonable or cannot be supported were recently described by Buss JA (with whom Martin CJ and I agreed) in Mack v The State of Western Australia [2014] WASCA 207 [143] - [147] in these terms:
In Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559, Hayne J (Gleeson CJ & Heydon J relevantly agreeing) said that where it is alleged that a conviction is unsafe or unsatisfactory, the question for an appellate court is:
[W]hether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant's guilt (M v The Queen [1994] HCA 63; (1994) 181 CLR 487 at 492 - 493). It is not sufficient to show that there was material which might have been taken by the jury to be sufficient to preclude satisfaction of guilt to the requisite standard. In the present case, the critical question for the jury was what assessment they made of the whole of the evidence that the complainant and the appellant gave that was relevant to the issue of consent to the digital penetration that had occurred in the park. That evidence did not require the conclusion that the jury should necessarily have entertained a doubt about the appellant's guilt [113]. (original emphasis)
See also Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300 [41] (Gleeson CJ, Gummow, Kirby, Hayne, Callinan & Heydon JJ).
It is a question of fact whether a conviction is unsafe or unsatisfactory. This court must decide the question by making its own independent assessment of the sufficiency and quality of the evidence, and determining whether, notwithstanding that there is evidence upon which a tribunal of fact might convict, nevertheless it would be dangerous in the circumstances to permit the verdict to stand. See M (492 - 493); SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400 [14] (French CJ, Gummow & Kiefel JJ).
The appellate court's task is not to consider, as a question of law, whether there was sufficient evidence to sustain a conviction. See Morris v The Queen ; , 473 (Deane, Toohey & Gaudron JJ); M (492 - 493); SKA [20].
217 At common law, hearsay evidence is not admissible in order to establish the truth of a statement: Subramaniam v Public Prosecutor [1956] UKPC 21; [1956] 1 WLR 965 (PC). The rule is subject to a number of common law exceptions. Over time, statutory exceptions have also developed. By the latter part of the 19th century, nearly all of the common law exceptions to the rule against hearsay had evolved. Courts have been slow to create new exceptions, although it cannot be said that the class of common law exceptions is closed. See Myers v Director of Public Prosecutions [1965] AC 1001 (HL); Brown v The State of Western Australia [2011] WASCA 111; (2011) 207 A Crim R 533 [52] and Cross On Evidence (10th ed) [31015] (footnote 25).
219 The basic legal principles applicable to statements made as part of the res gestae are well settled and were recently described by Buss JA (with whom Newnes JA and I agreed) in Armstrong v The State of Western Australia [2012] WASCA 42; (2012) 220 A Crim R 274 [46] ‑ [50], as follows:
In general, a statement made spontaneously by an observer or participant during or immediately after an event which culminates in the charging of a criminal offence is admissible in evidence at the trial as part of the res gestae.
In Ratten v The Queen [1971] UKPC 23; [1972] AC 378, Lord Wilberforce said that 'if the drama, leading up to the climax, has commenced and assumed such intensity and pressure that the utterance can safely be regarded as a true reflection of what was unrolling or actually happening, it ought to be received' (389 - 390).
In Ratten, Lord Wilberforce also said:
This approach was approved by the High Court in Walton v The Queen [1989] HCA 9; (1989) 166 CLR 283, 295 (Mason CJ), 304 (Wilson, Dawson & Toohey JJ) and Pollitt v The Queen [1992] HCA 35; (1992) 174 CLR 558, 582 ‑ 583 (Brennan J).
In Papakosmas v The Queen [1999] HCA 37; (1999) 196 CLR 297, Gaudron and Kirby JJ made these observations:
See also Kelly v The State of Western Australia [2013] WASCA 114.
220 The observation made by Gaudron and Kirby JJ in Papakosmas that the doctrine is 'crucially dependent on the virtual certainty of the statement in question being true' may invite consideration of whether a judge must consider the reliability of the evidence. In that case, Gleeson CJ and Hayne J referred (at [22]) with apparent approval to the decision in the House of Lords in R v Andrews [1987] AC 281 (HL). Andrews has some factual similarity to the present case. The victim was attacked and stabbed with two different knives and then robbed. Within minutes of the attack, and bleeding profusely from a deep stomach wound, he went downstairs to the flat for assistance. The police and ambulance were immediately telephoned and, within a matter of minutes, the police arrived, shortly followed by an ambulance. One of the attending police officers, whilst administering first aid, asked the victim how he had received his injuries. The victim replied that he had been attacked by two men, and named them, one of them being the appellant. The victim was later placed on life support, but died two months after the attack. The appellant was convicted of aggravated burglary and manslaughter. During his trial, the prosecution sought to adduce evidence of the victim's statement to the police officer as evidence of its truth pursuant to the doctrine of res gestae. The evidence was admitted for this purpose.
222 Plainly, it is necessary for a judge to consider the likelihood of deliberate concoction or distortion on the part of the maker of the statement. Beyond this, in the ordinary case, the question of the reliability of the evidence is one for a jury, not for a judge: R v Duong [2011] SASCFC 100; (2011) 110 SASR 296 [40] (Doyle CJ). However, as Lord Ackner recognised, there may be special features in a case that require a judge to consider whether the possibility of error can be excluded.
241 The operation of s 79C of the Evidence Act was explained by Steytler, Wheeler and McLure JJ in their joint reasons in Beamish v The Queen [2005] WASCA 62 in these terms:
242 In Cavill v The State of Western Australia [2008] WASCA 108, one of the grounds of appeal raised the issue of whether a statement made to a doctor by a complainant to an offence of a sexual nature, and recorded by that doctor in the medical records of the practice, was admissible pursuant to s 79C of the Evidence Act. McLure JA (Buss JA agreeing in separate reasons) observed that the relevant entry was a record of what the doctor had been told by the complainant, who was a qualified person and who could give direct oral evidence of what had occurred to her. Thus, the statement was admissible pursuant to s 79C(1). Further, the statement was admissible pursuant to s 79C(2a) because the document containing the complainant's statement was also a business record of the medical practice. In that case, the trial judge exercised his discretion to reject the tender by reason of s 79C(6). The court held that his Honour did not err in doing so.
(2013) 45 WAR 207
(1994) 181 CLR 487
(2007) 230 CLR 559
(2005) 224 CLR 300
(2011) 243 CLR 400
(1987) 163 CLR 454
(2010) 242 CLR 491
(1989) 166 CLR 283
(1992) 174 CLR 558
(1999) 196 CLR 297
(2011) 110 SASR 296
(1989) 168 CLR 110
(2002) 25 WAR 282
(1995) 185 CLR 1
(2012) 245 CLR 632
(2012) 246 CLR 92
(2013) 88 ALJR 215
(1999) 195 CLR 665
(1936) 55 CLR 499
(2007) 35 WAR 1
(2009) 40 WAR 414
Rather, the appellate court, in making an independent assessment of the whole of the evidence to determine whether it was open to the tribunal of fact to be satisfied beyond reasonable doubt as to the guilt of the accused, must weigh the evidence (in particular, the competing evidence). See SKA [22], [24].
However, an appellate court, in assessing whether it was open to the tribunal of fact to be satisfied beyond reasonable doubt that the accused was guilty, 'must not disregard or discount either the consideration that the [tribunal of fact] is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the [tribunal of fact] has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations': M (493); R v Nguyen [2010] HCA 38; (2010) 242 CLR 491 [33] (Hayne, Heydon, Crennan, Kiefel & Bell JJ); SKA [13].