ROBERTS -v- THE STATE OF WESTERN AUSTRALIA [2007] WASCA 48 (27 February 2007)

4 The argument in support of this ground took place in a factual vacuum. The written submissions in support of the ground read as follows:

"16. The learned trial judge failed to exclude evidence relating to the 'trust fund' which would go to the Appellant's wife in the event of the deceased's death. TP 22-24, 27

1. This evidence could only have prejudiced the jury and was unnecessary in light of the fact that there was no contest as to the concealment of the death.
2. More importantly, it was never the State's case that this evidence was in support of some motive on behalf of the Appellant to kill the deceased.
3. The admission of the evidence of the trust fund was a mischief such that its prejudicial effect, irrespective of any direction as to the use to which the jury may use it, could not cure such prejudice.
4. This evidence was objected to by Counsel for the Appellant at trial."

5 Neither in the written submissions nor during the course of the oral submissions were we actually taken to the portions of the evidence at trial relating to the possible disposition of the trust fund on the death of the deceased, although we were taken to the discussion of the anticipated evidence with his Honour at the time that he ruled it admissible, and we were taken to his Honour's summing up. The Court asked both counsel for the appellant and counsel for the respondent to provide relevant transcript references, but they were unable to do so at the time.

6 With the help of an electronic search facility, I have, I hope, located all of the relevant passages, which are brief. The evidence as it was led at trial seems to have relevantly been as follows. First, Mr Williams, a senior trust manager with the Public Trustee's Office, gave evidence that, in January 2001, the Public Trustee received a payout of some $400,000-odd for the deceased. It was his evidence that, to the best of his knowledge, the deceased had never made a Will, that the appellant's wife was the only sister of the deceased, and that the appellant's wife would therefore be the sole person entitled to the deceased's estate in the event of his death (t/s 149 - 151).

7 The appellant gave evidence. In his evidence-in-chief, he did not deal directly with the question of the possible inheritance of $400,000, but he did give evidence about his involvement with the deceased's financial affairs generally. His evidence was:

"My wife mainly looked after his, and not just his but mine as well. I had nothing to do with the everyday monetary things. I really couldn't care what happened with it all." (t/s 389)

There was a little more evidence along those lines, to the effect that financial administration was a matter that he had left to his wife.

8 In cross-examination, the appellant was asked about the deceased's estate. The relevant passages of cross-examination were as follows:

"You were aware that Colin had not left a will?---I beg your pardon?

Did you know that Colin had not left a will?---Was I aware that Colin - sorry, the last part I didn't quite catch.

To your knowledge had Colin left a will?---I don't know.

Do you know today?---I still don't know.

You still don't know. You heard the public trustee's evidence?---What's he got to do with me?

You heard the public trustee's evidence. You heard the man from the public trust. They weren't aware of any will?---And neither was I.

Your wife was Colin's next of kin?---She would be the next of kin. It's brother, sister; that's it.

If he died intestate, if he died without a will, she stood to gain from his estate. Is that your understanding?---That wasn't my understanding, no. It is - today it is, yes. I've been corrected by the police that are sitting over there right now." (at t/s 451)

9 Leaving aside for the moment anything which may have been said by counsel to the Judge, or by the learned trial Judge to the jury, the position on the face of that evidence appears to me to be this. The evidence in relation to a possible inheritance by the appellant's wife of a very significant sum of money in the event of the death of the deceased was a factor which it was open to the jury to regard as supplying a motive for the appellant to kill the deceased, if the appellant knew of that potential inheritance. The fact of the potential inheritance was made known to the jury through the evidence of Mr Williams. The appellant's knowledge of that potential inheritance was explored with him both in examination-in-chief (indirectly, by his giving evidence of a lack of interest in financial affairs), and directly in cross-examination. The view which the jury then took about his knowledge of that matter was entirely for them.

10 The evidence was both relevant and admissible because, although the State did not have to prove motive, the existence of one or more motives for the appellant to kill the deceased would be something which the jury could take into account in evaluating the circumstantial case against him. To the extent that the State appeared to rely upon a motive at trial, the appellant's alleged dislike of, and frustration with, the deceased was a focus of significantly more of the evidence, but the knowledge of some possibility of inheriting a significant lump sum could be seen as possibly contributing to a decision which the appellant may have made in any event for other reasons.

11 It is the light of that evidence and analysis that the submissions on behalf of the appellant fall to be evaluated.

12 As Roberts-Smith JA has noted, the submission as it was put to us was that the evidence was irrelevant and therefore inadmissible. That submission is simply incorrect. However, it was also put to us that the State had "disavowed" any possible motive arising from the inheritance. It was said that, as a result, the trial had been unfair because the appellant had not had a chance to address that issue. Both of these submissions are, in my view, incorrect.

13 Roberts-Smith JA has quoted in his reasons, the way in which the State prosecutor dealt with the issue of motive when it was discussed in the absence of the jury, at t/s 27. It is true that he said that it was not the State case that the deceased was killed for the $400,000. However, in the same passage, the State prosecutor made the observation "although he may have killed him for that money". It should also be noted that in an exchange with his Honour, the State prosecutor foreshadowed an intention to cross-examine the appellant about the money, if the appellant gave evidence.

14 In my view, on a fair reading of the whole of the exchange between his Honour and the State prosecutor, the State prosecutor was asserting that motive was not the "State's case" only in the sense that motive was not central to, or in the forefront of, the case. That, no doubt, was because the State sought to rely primarily upon the circumstances in which the appellant came to dispose of the deceased's body, and the evidence of Chapman about that. The State was not setting out to prove motive as part of its case, but did seem to have been suggesting that a motive might be found by the jury and that that would be something relevant to the jury's consideration. As Roberts-Smith JA has pointed out, counsel for the appellant at trial certainly seemed to have been under the impression that the evidence was being led in order to demonstrate a motive, and, in my view, that impression was correct. The appellant was on notice that that matter would be raised.

15 I did not understand counsel for the appellant before us to rely upon some separate suggested basis of exclusion related to the possible prejudicial effect outweighing the probative value of the evidence. Having regard to the role which the evidence played in the trial - as a relevant, but minor issue - and to the very substantial body of other evidence implicating the appellant, it would, in any event, be my view that such a submission would be bound to fail.

16 It remains only to deal with the way in which his Honour left this evidence to the jury. In the passage quoted from t/s 535 - 536, which is set out in the reasons of Roberts-Smith JA, it does appear that the learned trial Judge went close to directing the jury that there was no evidence of motive and that the evidence of the possible inheritance could not be so regarded. If the jury had understood his Honour's direction in that way, that would have been a direction unduly favourable to the appellant. However, in the various other passages at t/s 539, 547 and 549, the possible motive was referred to as one of the many circumstances which the jury could take into account. His Honour did no more than list that possible inheritance as a relevant circumstance. He did not unduly emphasise or exaggerate it. In my view, the direction was in accordance with the evidence and with the issues at trial.

17 It is therefore my view that ground 3 lacks any substance, and I would dismiss the appeal against conviction.

18 ROBERTS-SMITH JA: The appellant appeals against both his conviction for murder and the sentence of life imprisonment with a

minimum term of 13 years to be served before eligibility for parole, imposed in respect of it.

19 Following trial before Miller J and a jury in the Supreme Court at Perth between 3 and 11 November 2005 on an indictment charging the appellant with the wilful murder, and in the alternative, with the murder, of Colin Coates on a date unknown between 26 June and 20 July 2001, the jury returned a verdict of not guilty of wilful murder but guilty of murder. The appellant was sentenced by Miller J on 21 December 2005.

20 The appeal notices against conviction and sentence were filed on 3 February 2006.

21 On 1 May 2006, Steytler P gave leave to appeal on two grounds of appeal against sentence. On 26 June 2006, I gave leave to appeal on three grounds of appeal against conviction.

22 I turn to a brief outline of the prosecution case.

23 Colin Coates ("Coates" or "the deceased") had an unfortunate and sad life. He suffered from a mental impairment. He left school at the age of 14 with a fourth grade primary school intellectual level. He was on Social Security support since the age of 16 and was never permanently employed. He lived all his life with his mother until she passed away around 1992. He apparently had a mental age of 8 years.

24 In 1996, Coates suffered a serious head injury in a motor vehicle accident.

25 After that accident he became reliant on his sister for the provision of his meals, shopping, management of his finances and help with the more complex household chores.

26 In early 2001 the Public Trustee advised Coates' sister that he had received $415,625 on behalf of the deceased for a Motor Vehicle Insurance Trust claim arising out of the motor vehicle accident. The Public Trustee had those funds under management on Coates' behalf. Coates was also dependent on his sister who had some form of authority over his financial affairs. The appellant is married to Coates' sister.

27 Following Coates' discharge from hospital in 1997, he lived from time to time in a Homeswest unit in Beaconsfield, or with his sister's family at their home in Hamilton Hill.

28 The Public Trustee made fortnightly payments to the Roberts' family bank account to cover the rent payable on Coates' Homeswest unit and for his board and lodgings with the Roberts family.

29 Coates had continued to live in the Homeswest unit following his mother's death.

30 The payments by the Public Trustee commenced in February and March 2001. They were for Coates' fortnightly Homeswest rent of $104 and $300 a fortnight to his sister for his board and lodgings.

31 The Homeswest rental payments continued until April 2004. The board and lodging payments continued until May that year.

32 The prosecution case was that sometime around 18 July 2001, in circumstances which remain a mystery, the appellant killed Coates at the house in Hamilton Hill. He then, with the assistance of Howard Chapman, a friend, disposed of the body in bushland to conceal the fact that death was by violence.

33 The appellant explained Coates' sudden disappearance to his family by saying he had gone off on one of his walks, and over the next three years the appellant kept his family ignorant about what had happened. Strangely, the family did not talk about Coates' sudden disappearance.

34 The Public Trustee's Office was not advised that the appellant was no longer living with the Roberts family and so moneys continued to be transferred to the Roberts' family savings account for his board and lodgings until May 2004. The deceased's Homeswest unit in Beaconsfield was maintained until Homeswest insisted on personally speaking to him in early 2004 and as a result, the key to the unit was returned to Homeswest. In late 2001 or early 2002, after Coates' death, the Public Trustee declined to reimburse the Roberts family $23,565 for a granny flat that the appellant claimed he had added to his Hamilton Hill property to house the deceased.

35 The payments from the Public Trustee for rent, board and lodging were stopped the month after the key to the unit was returned to Homeswest.

36 The appellant was interviewed by police in May 2004. He told them that he slapped Coates on the face in the granny flat attached to the house at Hamilton Hill to get his attention because the deceased had defecated on some plastic wrapping on the toilet seat. The appellant said it made him "mad" because the toilet was in a box and had yet to be connected. He told the police he was with the deceased when the deceased fell off a chair on which he was sitting, struck his head on the concrete floor and died, about three or four hours later. He said he felt his slap to the deceased's face earlier might have contributed in some way to his death by making him "nervous or something". He claimed he did not call an ambulance because he felt bad about slapping the deceased's face. He admitted he tried to conceal what had happened. He said he put the body in a plastic bag in the boot of his car until he disposed of it the following day. He denied that anyone assisted him to dispose of the body. He said that the following day he drove south past Armadale where he left the body behind a log just off a bush track. He told the police he removed the plastic from the body so he did not leave his fingerprints behind. He then covered the body with twigs and branches and on his way home he disposed of the plastic in an industrial rubbish bin.

37 When asked by the police what he was thinking about while he was driving around looking for somewhere to dump the corpse, he said "Have a car accident and kill myself".

38 The appellant said he explained the deceased's disappearance to his family by telling them that he had told the deceased to "piss off".

39 He told the police that although he went back a couple of times looking for the body, he could not find where he dumped it.

40 He acknowledged the continued payments by the Public Trustee for another three years after the death of the deceased. He told the police that for two years, on a fortnightly basis, money was withdrawn from their family savings account and left by his wife with groceries at the Homeswest unit for Coates. He said to the police that on each occasion the money and the groceries that were left went missing. He denied subletting the deceased's Homeswest unit. He denied being violent towards the deceased in the past.

41 During a search of the main bedroom of the Hamilton Hill residence, police found the deceased's passport, his Medicare card and his Centrelink card.

42 In September 2004 at a bush location near Randall Road, Wandering, the police located the skeletal remains of the deceased and items of his clothing. A forensic pathologist and a forensic anthropologist conducted a post-mortem examination of the skeletal remains at the State Mortuary but were unable to determine the cause of death because of the limited amount of human remains and the passage of time.

43 Contrary to the assertions of the appellant to the police, there was evidence at trial from community workers and friends and neighbours of the Roberts family of the attitude and conduct towards the deceased which indicated that the appellant treated him poorly and on occasions was abusive and violent towards him. Coates was terrified of the appellant. The prosecution relied upon that evidence to show the nature of the relationship which existed between Coates and the appellant at the time of these events.

44 The evidence of the deceased's sister, Dorothy Roberts, was that following his discharge from hospital after his motor vehicle accident, Coates lived in his Homeswest unit in Beaconsfield initially, but sometime later moved into the Roberts' family home, bringing with him some of his possessions from the Homeswest unit. She said he occupied as his living accommodation a bus that was parked in the driveway of their home. The $300 a fortnight paid by the Public Trustee into the family savings account was used to pay for the deceased's expenses at their home and his bills from the Homeswest unit. She said that when her brother disappeared from their home in mid-2001, the appellant told her words to the effect "Not to worry, because he's probably gone off on one of his walks" or something like that. He also told her Coates was probably living in Mandurah.

45 She said it was not until February 2004 that they surrendered Coates' Homeswest unit and the fortnightly payments from the Public Trustee for rent, board and lodgings stopped the following month.

46 Again, contrary to what the appellant told the police, evidence was given by Howard Chapman that he assisted the appellant dispose of the deceased's body.

47 On the State case, Chapman was an accessory after the fact. However, he had been given an indemnity against prosecution in exchange for his cooperation and truthful testimony about these events.

48 Chapman said that he was an old friend of the appellant. He lives in Thailand and his daughter lived with the Roberts family for some years. He said that on 18 July 2001 the appellant telephoned him in Thailand, telling him that he had a problem in Australia and could he get there as soon as possible. The appellant said he could not discuss it on the telephone. It was a very short phone call. Chapman did not press the matter. He thought the problem might be to do with his daughter as it sounded urgent. He took a flight to Perth from Thailand the following day. He arrived at Perth International Airport around midnight and the appellant met him as arranged.

49 When they got into the appellant's car, Chapman asked the appellant what was the problem. The appellant said words to the effect "I've got a problem with Colin. He's in the boot". Chapman told him he must be joking but the appellant replied that he was not joking and that Colin had "expired".

50 When asked what had happened, the only detail Roberts gave Chapman was that the deceased had defecated all over the place. Chapman said he did not ask the appellant anything further because he knew the appellant would not tell him. The appellant only told him what he needed to know to help him solve the problem. Chapman described how they drove to the Hamilton Hill residence where they spent the night before setting out early the following morning to dispose of the body.

51 Chapman testified they drove around for most of the day with the body in the boot, looking for somewhere suitable to leave it. Eventually they settled on a bush track where there was a big log nearby. According to Chapman, he sat in the car while the appellant removed the body, which was covered in clear plastic, from the boot and dragged it behind the log. The appellant then put sticks and branches over it. When the appellant finished covering the corpse they got back into the car and drove back onto the highway and returned to Hamilton Hill. On the way home, the appellant stopped to clean out the boot. The appellant reimbursed Chapman for the airfares before he returned to Thailand. Chapman said he wanted to ask the appellant why he asked for his assistance when he could have got rid of the body by himself, but he was too scared and the appellant would not have told him anyway.

52 Chapman further said that on a subsequent visit to Perth, he and the appellant went looking for the location of the body but could not find it. He said that on another visit in early 2004, he told Tony Lewandowski, a friend, and former detective, about the body and they went looking for the location but could not find it. Chapman told Lewandowski to pass the information on to the police before he returned to Thailand. That was how the police became involved.

53 In late May 2004, Chapman agreed to assist the police with their investigation. By arrangement with the police, Chapman persuaded the appellant to go looking for the body again. They were under police surveillance while they did so.

54 They do not get very far out of Perth before the police surveillance officers lost mobile phone contact with each other. As a consequence, the officers aborted the operation, stopped the appellant's car and arrested him. He took part in a lengthy video record of interview ("VROI") on 27 May 2004. I have already briefly outlined what he said then.

55 The deceased's skeletal remains were not discovered until four months later.

56 The appellant gave evidence at trial. The account he gave there was quite different to what he had told the police in May 2004.

57 In summary, the appellant's evidence at trial was as follows.

58 Maybe three, four or five weeks before 20 July 2001, the appellant was constructing a room (which he described as a unit) inside a shed at the back of his Homeswest property, for Coates to live in. Coates was with him, doing minor jobs, such as collecting rubbish. One of the jobs the appellant still had to do was install a toilet. He had purchased a toilet, but it had not been installed. It was still in a cardboard box and had plastic wrapping over it. He had told Coates to leave it alone. Nonetheless, Coates decided to use it. He sat on it and defecated. The faeces went all over the plastic wrapping, covering the top of the toilet, and all over Coates' buttocks. The appellant came in and saw this. He said he felt sick with the smell. He was angry with Coates and slapped his face with his open hand. When he did that, Coates looked very disturbed; he looked "wonky" and distressed. The appellant told Coates to go outside, where he hosed Coates clean. He went back into the room, tore the soiled plastic off the toilet, wrapped it up and took it outside and threw it into a wheelie bin. He was furious and swearing loudly, to the extent that a neighbour complained. His wife and children came out and the appellant shouted and swore at them explaining what had happened. He described himself as extremely upset and swearing out of control. Coates kept out of his way. Eventually the appellant calmed down and returned to work on the room. Coates quietened down as well after they did a bit of work. About one and a half to two hours later, the appellant's wife brought out sandwiches or something else and some cordial and the three of them sat at a small table and had lunch. Coates seemed quite alright then. After lunch, Coates stayed in his chair and the appellant put the television on for him. The appellant went on with his work. Later, Coates helped him by clearing up parts of the mess, in between watching cartoons.

59 The appellant always ate his meals outside the house, on the rear patio, which was enclosed. Coates also used to eat there, at another table. They had their dinner there that night. When Coates finished, the appellant told him to wash up his plate and cutlery. He did that in the laundry. He came back to the patio and sat at the table with the appellant. Sometime later, possibly an hour, the appellant told Coates that what he had done that day "was a bit silly". Coates began to laugh. He seemed to think it was a joke. This made the appellant angry again and he opened the patio door and told Coates to "piss off" and go and live in his own place and not to bother coming back. Coates went out and the appellant slammed the door. Most of the appellant's family came out to see what was happening. The appellant said he had told Coates to "piss off" and not come back. He testified that his wife was not impressed and went outside to bring Coates back, but the appellant warned her not to do so. He said he told her Coates had to live in his own unit and he did not want Coates in his house again ever. He said he was angry.

60 The appellant said the next time he saw Coates was about five weeks later. The appellant had gone to Perth International Airport to pick up Chapman who had returned from Thailand to have his visa renewed, as he did every six months. Chapman had a suitcase. The appellant had a problem at the airport and Chapman put the suitcase in the boot of the car himself. The problem the appellant had was with someone who "looked like a cop in a uniform". The appellant had parked in a disabled parking bay and had gone inside the airport. There was a call over the public address system for the owner of a green Mercedes. The appellant went back to the car with Chapman. The officer or official "started mouthing off" and the appellant "more or less told him where to go and how to do it". Chapman threw his bag in the boot and got in the car and the appellant drove off. He drove home. Chapman was going to stay there overnight.

61 It was about 1.30 or 2 am when they arrived. As the appellant drove into his street, his headlights shone on someone standing next to the roller door of his shed. It was Coates. It was raining and Coates was wet. The appellant and Chapman got out of the car and the appellant asked Coates what he was doing there. He said to Coates that he had told him not to come back. Coates looked "a bloody mess". He was unshaven. He looked sheepish. He did not look good. Chapman said the appellant could not leave him there. In the end, the appellant relented and said he could come in. He went in through the patio. Coates was very timid; very sheepish. They all went into the unit the appellant had been building for Coates. Coates went into his room and put on some warmer clothes. Then they all sat around a table. Chapman had already been drinking in the aircraft. Chapman and the appellant talked and drank. Coates said he wanted a beer. The appellant gave him a lower alcohol beer. Coates suddenly leaned forward, pointed at Chapman and said he was a gangster and a liar and had not brought back the girlfriend for Coates he said he was going to bring back. According to the appellant, that last comment was apparently a reference to the fact Chapman would often tell Coates that when he returned from Thailand he would bring him back a girl in a suitcase. The appellant said Coates must have believed that. He testified Coates continued to call Chapman a gangster and a liar, shouting at him and being "a little bit aggressive". With that, Chapman slapped Coates on the side of the head, knocking him off his chair, which broke. Coates fell straight to the floor. Chapman stood up and it appeared he was about to kick Coates. The appellant flung out his arm and threw Chapman against the wall, winding him. He warned Chapman that if Chapman hit Coates again, he would put his head through the wall. At that stage Coates was sitting up on the floor. He had scrape marks on his head from where he had hit the concrete floor. The appellant got Coates up, kicked the broken chair out of the way and put him on a white plastic chair. He looked alright, although a bit frightened. The appellant told Chapman there had to be no more of that. He got another three beers out and they talked. After a while Coates seemed tired. He was yawning. The appellant told him to go to bed. Coates went into his room. The appellant told Chapman they should go outside and leave Coates alone. They took their beers and went to the patio, where they sat at a table. They had a few more beers. The appellant ended up drinking whiskey. Chapman got up and went to the toilet. When he came out he said he was going to tell Coates he was sorry. He went back into the unit. He came back after a couple of minutes. The appellant asked if Coates was alright. Chapman said he was, but he had already gone to bed. The two of them continued to drink and talk for another hour or so. Chapman said he heard something. The appellant had not, but he went to the unit to look. When he went inside he saw Coates lying on the floor on his side with his eyes wide open. The appellant called his name several times, but Coates did not respond. The appellant rolled him over and checked for signs of life but could not find any. He started to give Coates CPR, which he said he knew a little bit about. Between intervals, he kept calling to Chapman for help, but Chapman was a bit deaf. The appellant kept giving CPR until he was exhausted. He then left Coates and ran out of the unit and through the shed door. He shouted to Chapman to get an ambulance, but Chapman still did not hear him. He ran through the gate and screamed at Chapman to ring an ambulance because there was something wrong with Coates, and ran back to the unit. Chapman casually walked down behind him. The appellant had resumed CPR. He kept screaming at Chapman to go inside, ring an ambulance and get his wife; he was quite frantic.

62 There was basically no reaction from Chapman. He put his hand on Coates and said, quite casually "... he's dead". The appellant was exhausted, he was swearing and still telling Chapman to call an ambulance. Chapman then said he had brought some illegal things into the country in his suitcase and there was no way he wanted the police coming around because someone had died.

63 The appellant was sitting on the floor, exhausted. He could hardly breathe. Chapman said "Don't you fucking have a heart attack as well and die". The appellant's testimony was that (t/s 411):

"... He didn't - he did not say exactly what it was but I know that he brings in - well, I call it - he called it before China white, which I've now learnt, being in gaol, China white is a heroin. I know it's a heroin. I know it's an illegal drug in this country. There was enough for him and that's exactly how he said it. 'There was enough for me to retire,' was his words, 'and if anything goes wrong with this deal, there's a lot of people that will get hurt out of this, you included.' That's how he sort of put it. I couldn't give a rat's arse about me. I was more concerned about my own family because I know that Chapman is mixed up with a lot of funny, strange people, people you don't want to be associated with. A lot of them are bad people. With that, I'm still totally shocked; I'm still sitting on the floor on my backside."

64 They discussed what to do. Chapman suggested they put Coates' body out of the way for a day, while he got rid of what he had brought into the country, because Coates was dead and there was nothing they could do. The appellant had told him to throw it all over the fence, wash it down the toilet or just take the appellant's car and leave, and they could call an ambulance, but Chapman would not do that. The appellant eventually agreed with Chapman that they should put the body into the boot of his car.

65 There was a large plastic bag in the unit in which a mattress had been packed. They wrapped the deceased's body in that, carried him out and put him in the boot of the car. The appellant kept remonstrating with Chapman, telling him "This is not right". Nonetheless, they both got in the car and departed, the appellant driving. By then it was daylight. They went through Fremantle and approached Mandurah. The intention at that stage was to put Coates' body away and pick him up or put him in a park or somewhere where someone would find him. No place was satisfactory. They drove around for five or six hours. The appellant's evidence was that he wanted Chapman out of the car. He wanted to drive his car into something, like a lighthouse, and have an accident "... and just end the bloody lot". He said he knew what he was doing was not correct - he was guilty of that 100 per cent; he should not have gone along with Chapman.

66 Eventually, they got to some place off Albany Highway, along a bush track. They came to a small clearing. There was a big log by the side of the track. They put the body alongside the log on the side away from the track. The appellant slid the plastic off the deceased and rolled it up. He lifted Coates' head up and put a black floor mat from the car under his head. They covered the body with branches and leaves.

67 The two of them then got back into the car and the appellant drove away. On the way back, he stopped the car somewhere, took the plastic out of the boot and threw it in a rubbish skip. They then returned home to Hamilton Hill and acted as if the appellant had just picked up Chapman from the airport.

68 Later in the morning someone arrived at the house to collect Chapman and he left with them. The appellant did not see him again until some months later, when Chapman arrived in a red car, just on one of his trips.

69 In his evidence-in-chief, the appellant was then asked how he came to meet Chapman. He explained it was originally through Lewandowski. It was at the appellant's house. Lewandowski had arrived with Chapman. They were going to Lewandowski's son's football match, but it was cold and raining and Chapman ended up staying at the house instead of going to the match.

70 The appellant next met them both in Thailand, where Chapman had a bar at the time. On that occasion, the appellant had to return to Australia early. Lewandowski asked him to bring back two Dolphin torches for him. They were in shrink-wrapped cellophane. The appellant did so. Lewandowski returned about a month later. He telephoned the appellant and asked him to come to his place, and told him not to forget the torches. The appellant went to Lewandowski's home, as arranged, where Lewandowski laughingly showed him that the torches contained what Lewandowski described as "China white", which the appellant had since learned from fellow prisoners was high grade heroin. The appellant said that after that he did not talk to Lewandowski for months, even though Lewandowski constantly rang his house.

71 About eight days after the appellant and Chapman had disposed of the deceased's body, the appellant saw Lewandowski. He told Lewandowski what had happened. Lewandowski told him he was a "bloody idiot for trusting Chapman" and suggested they go and look for the body. They did so, but could not find it. They went again sometime later. Lewandowski brought maps, but they were still unsuccessful.

72 In his evidence, the appellant said Lewandowski advised him to go and tell someone he could trust in the Office of the Director of Public Prosecutions. The name he gave was that of the Director himself. The appellant said that when he was arrested, he did request that, but the police officers told him it was impossible.

73 The appellant denied he had ever ill-treated Coates in any way. He denied ever having asked Chapman to come to Australia for any reason. He denied an incident involving him and Coates about which several prosecution witnesses had testified. He confirmed that he and his wife regularly took groceries to Coates' unit for about 2½ years after his death and that the groceries had always gone afterwards, but he denied knowing anything about that. He agreed the account he had given the police in the VROI was mostly untrue, but explained that was only because he was not a "dog". He "didn't want to incriminate someone in any way for absolutely no reason" (t/s 436).

74 In cross-examination he agreed he had lied about Coates' disappearance. He admitted to having told a number of lies to police. It is not necessary for present purposes to detail all that, nor what else he said in cross-examination. I mention only that when he was reminded he had told police in the VROI that at one stage while he was driving around with the deceased's body in the boot of his car, he was stopped by a police officer for not wearing a seatbelt, but let go with a caution, he maintained that was true, except that Chapman had been with him, in the passenger seat of the car, at the time. He maintained that Chapman's suitcase containing the heroin was also in the boot at the time.

"1. The Learned Trial Judge erred in law in that he failed to direct or to direct the jury adequately with respect to a defence, open for the jury's consideration, of accidental death resulting from an assault in circumstances where there was no intent to inflict serious harm and in which a reasonable man would have realised that the Accused was exposing the deceased to an 'appreciable risk of serious injury'.

1. The Learned Trial Judge erred in law in that he failed to direct or adequately direct the jury with respect to the elements of involuntary manslaughter thereby depriving the Appellant of the opportunity of being acquitted of murder but being found guilty of manslaughter.
2. The Learned Trial Judge erred in law in that he failed to exclude prejudicial evidence led by the prosecution during the trial."

76 No particulars are given of any ground. That is a failure to comply with r 32(4)(b) of the Supreme Court (Court of Appeal) Rules 2005 (WA).

77 The written submissions in the Appellant's Case were quite unsatisfactory. As it transpired, they did not reflect the oral submissions made on the hearing of the appeal, which appeared to me at least, to be quite different.

78 Grounds 1 and 2 may be dealt with together. They go to a complaint that the trial Judge failed properly to place before the jury the defence of accident and to properly define and leave the alternative verdict of manslaughter to the jury.

79 The trial Judge directed the jury in relation to wilful murder, murder and manslaughter in what might be described as the customary way in this jurisdiction. He did so against the background of the evidence (t/s 531 - 535):

... Before I go into what are is wilful murder, murder and manslaughter the state [sic] must first prove that the accused man caused the death of the death before we consider wilful murder, murder or manslaughter. Question 1 - that is question 1: did the accused man cause the death of Colin Coates? The state [sic] sets out to do it this way: firstly, by proving that the deceased, Colin Coates, was with the accused when he died, and the accused admits that; secondly, by proving that the accused disposed of the body, and the accused admits that, in circumstances where he concealed that fact and the accused admits that.

So, the state [sic] says, if the accused disposed of this body by leaving it out in the bush and did not notify the authorities, he did an act contrary to law because the law is, ladies and gentlemen, you are required by law to report the death of a person. The Coroners Act provides that. You probably don't need to know what's in the Coroners Act but you would know well enough you have to report the death to somebody.

The law also provides that the disposal of a body in law can only be under the Cemeteries Act or the Cremations Act. There's only two ways you can dispose of a body. So it would be open to you - but this is the question for you - to conclude if you're satisfied beyond reasonable doubt that by disposing of the body as he did, the accused caused the death of the deceased. That is the question.

There's no evidence as to the actual cause of death but that's not required as a matter of law. The state [sic] doesn't have to prove the actual cause of death. What the state [sic] says is that by disposing of the body as he did (a) the accused caused death, and (b) the death was a result of violence. This is where this question of inferences comes in. You have to infer, to accept the state [sic] proposition that it was death as a result of violence.

It would be open to you, but it's entirely a question for you - it would be open to you to be satisfied beyond reasonable doubt, if that was the decision you reached, that the act of concealing the body was to conceal the fact that the death was a result of violence. That's what the state [sic] urges you to accept, but you have to be satisfied beyond reasonable doubt about it. I will repeat it. It would be open to you, if you were satisfied beyond reasonable doubt, to conclude that by concealing the body, so concealing it, was to conceal the fact that death was a result of violence because, the state [sic] says, a post-mortem would have revealed violence.

So you have to draw an inference about this before you can be satisfied beyond reasonable doubt; that you can [sic take] into account what I said about inferences and the drawing of them. So if you're satisfied the cause of death was violence at the hands of the accused, it would be open to you - and it's entirely a question for you - to infer from such violence that the accused intended to cause his death or at least grievous bodily harm, and I will come to that in a moment.

If you can't discount the account that the accused gave on the video, his video account where he said, 'Look, I just gave him a slap early in the day. We had lunch. He sat down. He was okay. The next thing, he just keeled over and the next thing he was dead' - if you can't discount that, then you could not conclude that the accused caused his death. See how I said that; 'if you can't discount it'? He doesn't have to prove that because there's no obligation on him to prove anything. The state [sic] has to satisfy you beyond reasonable doubt that that couldn't be true, but if you're left in doubt about that, then you couldn't be satisfied beyond reasonable doubt that he caused death.

Now, it's complicated by the fact that the accused denies that account. He now says it was Chapman who struck the deceased, and this was about five weeks later; three, four, five, he said, three, four five weeks after any incident about the toilet. So you have heard his account about that. Again he says Chapman only gave him a slap; he seemed all right; he was picked up; sat for a while and then he went off to his room and he was later found dead.

The accused doesn't go so far as to say Chapman killed him, although his counsel actually cross-examined Chapman and put to him, 'You killed him', but the accused backed off from that. He didn't say Chapman had killed him; he only told you what had happened and how he was later found to be dead. Again, if you can't discount the possibility that this is how it happened, then you could not find that the accused caused the death.

So that's the question of causation. You see, it's a very important and fundamental threshold issue here. The state [sic] must prove that the accused caused the death of the deceased. How do they set out to do that? I will repeat: they set out to do it by saying, 'Well, he was with the deceased when he died,' and the accused admits that; he disposed of his body; the accused admits that; he concealed the fact that he disposed of it; the accused admits that. He did not notify the authorities that he had died. He disposed of a body contrary to law.

So from that you are asked to draw the inference, and you have to be satisfied beyond reasonable doubt, that by doing what he did, disposing of that body that way, it's clear that he caused the death of the deceased, even though there's no actual evidence as to what the cause of death was, and not only did he cause the death but he caused it by violence because he got rid of the body because he knew if there was a post-mortem, it would reveal that there had been violence on Colin Coates.

So therefore if you are satisfied beyond reasonable doubt, and only you can make this decision - if you are satisfied beyond reasonable doubt that by concealing the body he was concealing the fact that death was as a result of violence, it would be open to you to draw the inference, if you are so satisfied beyond reasonable doubt, that he caused the death and further, he had caused it with an intent to kill or do grievous bodily harm. We will come to that in a minute. So I have just repeated that to try and give you the picture of your first line of inquiry.

Now, ladies and gentlemen, not only does the crown [sic] or the state [sic] have to prove beyond reasonable doubt the accused caused the death of the deceased; it must prove the killing was unlawful. Under our law any killing is unlawful, as you would expect. Any killing is unlawful unless justified, authorised or excused by law. Well, we are not concerned here. There's nothing in this case that would suggest that any killing, if it occurred, was authorised, justified or excused by law. We don't have to worry about that.

I suppose the classic example of that would be in the days when they had capital punishment. An executioner would be authorised to take someone's life. We are obviously not concerned with anything like that. So I'm able to tell you that if the killing did occur and if you are satisfied beyond reasonable doubt it was the deceased [sic accused] who killed him, who caused his death, then the killing would be unlawful because there's nothing been raised here which would authorise it, justify it or excuse it. Sometimes killing in self-defence is justified and so on but there's nothing like that here.

Now, we finally get to this: if then an unlawful killing of the deceased by this accused has been proven beyond a reasonable doubt, the crime can be any one of three things, wilful murder, murder of [sic or] manslaughter, and this brings me to tell you what they are. You see, it's a three-tiered system of homicide; wilful murder at the top, murder in the middle and manslaughter at the bottom; three levels of homicide.

Let's start at the bottom. It's manslaughter if a person unlawfully kills another without any particular intent. What is the classic example of that? Well, motor vehicle manslaughter deaths are unfortunately a common feature of our life. People get in a motor vehicle; they have had far too much to drink; they drive far too fast; the roads are slippery, and terrible fatal accidents occur and people can be convicted of manslaughter in those circumstances for causing - for the unlawful killing of another human being on the road without any intent. They don't intend to kill people or even intend to do them serious harm; they don't intend to hit anyone. That's a classic example of manslaughter. You see, no intent but unlawful killing.

Now let's go to the top. What is wilful murder? Wilful murder is unlawful killing of another person with an intent to cause his death. You kill somebody and you intend to kill them - that is wilful murder. What is a classic example of that? An underworld assassination or a political assassination. Somebody is lined up in the sights of a rifle and shot, clearly with intent to kill.

In the middle is murder. Murder is this: if a person unlawfully kills another intending to do him grievous bodily harm, he's guilty of murder. What is grievous bodily harm? It is, and I will give you the definition to look at later, any bodily harm of such a nature as to endanger life or be likely to endanger life or to cause permanent injury to health or be likely to cause permanent injury to health. It's a convoluted definition; that's why I have written it down for you, but it's in a nutshell very serious harm. So if you set out with an intent to do someone very serious harm and the person is unlawfully killed, that would constitute murder. So there's your three-tiered law of homicide.

In relation to murder, just concentrating on that for a moment, that grievous bodily harm element, an intention just to harm or hurt someone without any more would not lead to a verdict of murder. You would have to find it was an intention to cause grievous bodily harm as I have defined it before somebody could be found guilty of murder.

You look at the time when the harm is inflicted. You don't take account of the availability of medical attention or anything like that. So I repeat, proof of an unlawful killing by the accused with no proof of any intention either to kill or do grievous bodily harm is manslaughter. Proof of an unlawful killing by the accused with proof of an intention on his part to do grievous bodily harm to the deceased would be murder and proof of an unlawful killing by the accused with proof of an intention on his part to cause the death of the deceased would be wilful murder.

So we're talking about intention in relation to two of these, wilful murder and murder. What is intention? It's obviously central. Intention to kill is a fact. It must be proven beyond reasonable doubt. Intention to cause grievous bodily harm is a fact and it must be proven beyond reasonable doubt. In other words, the accused doesn't have to prove, if you found he did cause the death and caused it unlawfully, that he didn't have any particular intention. The crown [sic] must prove the necessary intention beyond reasonable doubt.

Where is intention? It's in your mind. It can't be proved by producing it. You can only prove it by inference. There's that word again, 'inference' from acts done particularly or which you find him to have done or from what he might have said about intention, if he said anything. This man didn't say, 'I intended to do anything.' So you have to infer what acts were done and you have to infer with what intention - you have two inferences to draw.

You weigh up anything that he said and all other relevant facts. You have regard to what he said to investigating police officers and you have regard to what he said in this court. Of course in this court he said he didn't play any part in it whatever, but if on all of the evidence you're satisfied beyond reasonable doubt he did unlawfully kill the deceased and he had the intention either to kill or do grievous bodily harm he would be guilty of either wilful murder or murder." (My emphasis)

80 The appellant's argument is founded on the fact the cause and mechanism of death are unknown. It is submitted that arising out of that fact, there were six possibilities that the trial Judge ought to have left to the jury. They are adumbrated in this way, that:

(1) the appellant did not kill the deceased at all; he was killed by Chapman;

(2) the appellant killed the deceased intending to do so;

(3) the appellant killed the deceased intending to cause him grievous bodily harm;

(4) the appellant killed the deceased without intending to cause grievous bodily harm, but by an intentional, unlawful and dangerous act where an ordinary person would foresee a substantial possibility of serious harm;

(5) the appellant killed the deceased as a result of an intentional unlawful act, but in circumstances in which an ordinary person would not foresee a substantial risk to health or life; and

(6) the appellant killed the deceased as a result of an unintended act, that is, as a result of "pure accident".

81 Mr Richter QC conceded (1) and (2) had been rejected "out of hand" by the jury; (3) was what the jury found; (5) is killing by accident and (6) is killing by an unwilled act, which he accepted the jury had also obviously discounted beyond reasonable doubt. He submitted that neither (4) nor (5) were left to the jury by the directions given by the trial Judge. He submitted (4) reflected the classic formulation of manslaughter to be found in Wilson v The Queen [1992] HCA 31; (1992) 174 CLR 313.

82 The argument runs, that none of s 268, s 270, s 277 or s 280 of the Criminal Code provides a definition of manslaughter because they do not deal with the elements of that offence, which are left to the common law. What is meant by an "unlawful killing" in s 268 is to be determined by the common law. It is in that way that the definition of manslaughter by an unlawful and dangerous act applies to the offence of manslaughter under the Criminal Code and, in the circumstances of this case, ought to have been left to the jury. No authority was cited for this proposition.

83 It is submitted that the jury was not given the opportunity of returning a verdict of guilty of manslaughter, being an unlawful killing as the result of an unlawful and dangerous act, because the trial Judge gave no direction leaving it.

84 What is said to be the same argument, but to my mind is not, (and again, is not in terms of a ground of appeal), is that because there was no evidence from which any specific intent could be inferred, the only homicide of which the jury could find the appellant guilty here was manslaughter. Expressing that another way, senior counsel submitted that on the evidence there was no basis upon which the jury could reject manslaughter, rather than wilful murder or murder.

85 The relevant Code provisions are s 268, s 270, s 277, s 278, s 279 and s 280. They provide as follows:

"It is unlawful to kill any person unless such killing is authorised or justified or excused by law."

"Any person who causes the death of another, directly or indirectly, by any means whatever, is deemed to have killed that other person."

"Any person who unlawfully kills another is guilty of a crime which, according to the circumstances of the case, may be wilful murder, murder, manslaughter, or infanticide."

"Except as hereinafter set forth, a person who unlawfully kills another, intending to cause his death or that of some other person, is guilty of wilful murder."

"Except as hereinafter set forth, a person who unlawfully kills another under any of the following circumstances, that is to say -

(1) If the offender intends to do to the person ... some grievous bodily harm;

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

is guilty of murder."

"A person who unlawfully kills another under such circumstances as not to constitute wilful murder or murder is guilty of manslaughter."

86 By s 2 of the Criminal Code Act 1913 (WA), the provisions of the Code are decreed to be the law of the State with respect to the several matters therein dealt with.

87 The first question is whether the common law definition of manslaughter applies to that offence under the Code, specifically, whether what is meant in s 268 by "unlawful killing" is to be answered by the common law. The submission is that it is at the stage of interpreting the words "unlawful killing" that the common law intervenes. Against this, the respondent submits simply that the Code is "all encompassing" and it is not necessary to go beyond it for the elements of the offence of manslaughter. Counsel for the respondent submits what is really being advanced by the appellant is an argument that the trial Judge erred in failing to leave to the jury a defence of accident. I shall return to that aspect below.

88 The issue is one of statutory construction. The necessary starting point is that the relevant provisions are contained in a Code. The Criminal Code of Western Australia ("WA Code") was enacted in 1902 and re-enacted by the Criminal Code Act 1913 (WA) following amendment. The WA Code substantially adopted the draft Criminal Code prepared by Sir Samuel Griffith, enacted in Queensland by the Criminal Code Act 1899 (Qld) ("the Qld Code").

89 In his explanatory letter on his draft Code, dated 29 October 1897, Sir Samuel Griffith made certain observations (at page XII) about the offences of wilful murder and murder in Ch XXVII of Pt V. He then went on to say that in other respects that chapter embodied, he believed, the existing common law, with the possible exception of s 321 (killing an unborn child: s 290 WA Code).

90 Section 311 in its original form in the Griffith draft Code read:

"A person who unlawfully kills another under such circumstances as not to constitute murder is guilty of manslaughter".

91 The accompanying note indicates it was derived from the Bill of 1880 incorporating the draft Code of the Royal Commissioners in England. But it is to the words of the Code in the context of the provisions in which they appear that attention must first be directed.

92 In Kaporonovski v The Queen [1973] HCA 35; (1973) 133 CLR 209, Gibbs J explained (at 236):

"The question that now falls to be decided is one of construction. The instrument to be construed is a Code. It is hardly necessary to repeat, although it is of importance not to forget, the rules of construction of codifying instruments that have been laid down in such authorities as Bank of England v Vagliano Brothers [1891] AC 107, at pp 120, 144-145; Robinson v Canadian Pacific Railway Co [1892] AC 481, at p 487; Brennan v The King [1936] HCA 24; (1936) 55 CLR 253, at p 263; and Wallace-Johnson v The King [1940] AC 231, at p 240. The proper course in the first instance is to turn to the language of the Code itself and to construe it according to its natural meaning. However, if the Code uses an expression (such as 'provocation') which has acquired an accepted technical meaning, that accepted meaning may be attributed to the word if the Code itself has not defined it."

93 In R v Barlow (1997) 188 CLR 1, McHugh J (dissenting but not on this point) speaking of the Qld Code, said it must be interpreted according to its terms without resort to any presumption that its provisions reflect the common law, either at the time of the Code's enactment or subsequently. His Honour continued (at 18 - 19):

"It is well settled that the Code must be interpreted according to its terms without resort to any presumption that its provisions reflect the common law either at the time of the Code's enactment or subsequently. In Brennan v The King [1936] HCA 24; (1936) 55 CLR 253 at 263, for example, Dixon and Evatt JJ said of the Western Australian equivalent of s 8 that it:

'forms part of a code intended to replace the common law, and its language should be construed according to its natural meaning and without any presumption that it was intended to do no more than restate the existing law. It is not the proper course to begin by finding how the law stood before the Code, and then to see if the Code will bear an interpretation which will leave the law unaltered.'

This does not mean that a court cannot resort to the common law in interpreting the Code. In Stuart v The Queen [1974] HCA 54; (1974) 134 CLR 426 at 437, Gibbs J pointed out that:

'it may be justifiable to turn back to the common law where the Code contains provisions of doubtful import, or uses language which had previously acquired a technical meaning, or on some such special ground ... If the Code is to be thought of as "written on a palimpsest, with the old writing still discernible behind" (to use the expressive metaphor of Windeyer J in Vallance v The Queen [1961] HCA 42; (1961) 108 CLR 56 at 76), it should be remembered that the first duty of the interpreter of its provisions is to look at the current text rather than at the old writing which has been erased; if the former is clear, the latter is of no relevance.'

When the language and structure of the Code compel a particular interpretation, that interpretation must prevail regardless of whether a similar result would have occurred in common law jurisdictions. ..."

94 In the same case, Kirby J articulated some of the rules established by authority for the construction of provisions of a Code. As presently pertinent, they were (31 - 32):

"1. A code is enacted by an Act of Parliament. Like any other enactment, the imputed will of Parliament must be derived from the language of the enactment, understood in its context and, so far as possible, in order to give effect to its apparent purposes. Courts must give the language of a code, like any legislation, its natural meaning (Jervis [1993] 1 Qd R 643 at 670-671, per de Jersey J). If that meaning is clear and unambiguous, it must be given effect. The court will only look externally to other sources where the meaning is doubtful either because of the inherent ambiguity of the language used or because the words used have previously acquired a technical or special meaning (Sungravure Pty Ltd v Middle East Airlines Airliban SAL [1975] HCA 6; (1975) 134 CLR 1 at 22; Stuart at 437).

1. As a species of legislation, a code, such as the Code in question, is subject to a paramount rule. Its meaning is to be ascertained (Boughey v The Queen [1986] HCA 29; (1986) 161 CLR 10 at 30, per Brennan J. It must be remembered that the Code was not a mere re-statement of the criminal law as it stood in 1899. Many parts of the Code were novel, introducing fundamental changes to the pre-existing criminal law. See Martyr [1962] Qd R 398 at 413):

'by interpreting its language without reference to the pre-existing law, although reference may be made to that law where the Code contains provisions of doubtful import or uses language which has acquired a technical meaning (Robinson v Canadian Pacific Railway Co [1892] AC 481 at 487). It is erroneous to approach the Code with the presumption that it was intended to do no more than restate the existing law (Brennan at 263) but when the Code employs words and phrases that are conventionally used to express a general common law principle, it is permissible to interpret the statutory language in the light of decisions expounding the common law (Mamote-Kulang v The Queen [1964] HCA 21; (1964) 111 CLR 62 at 76) including decisions subsequent to the Code's enactment (Murray v The Queen [1962] Tas SR 170 at 172-173, 192; R v Rau [1972] Tas SR 59 at 71-72)'.

Thus the first loyalty is to the code (Jervis at 647). But in the stated circumstances, regard may be had to the pre-existing common law and to parallel developments in non-code jurisdictions.

1. At least in matters of basic principle, where there is ambiguity and where alternative constructions of a code appear arguable, this Court has said that it will ordinarily favour the meaning which achieves consistency in the interpretation of like language in the codes of other Australian jurisdictions (cf Vallance v The Queen [1961] HCA 42; (1961) 108 CLR 56 at 75-76; Parker v The Queen [1997] HCA 15; (1997) 186 CLR 494 at 517-519). It will also tend to favour the interpretation which achieves consistency as between such jurisdictions and the expression of general principle in the common law obtaining elsewhere (Zecevic v Director of Public Prosecutions (Vic) [1987] HCA 26; (1987) 162 CLR 645 at 665). This principle of interpretation goes beyond the utilisation of decisions on the common law or on comparable statutory provisions to afford practical illustrations of particular problems and the approaches adopted in resolving them (Jervis at 647). It represents a contribution by the Court, where that course is sustained by the language of the code in question, to the achievement of a desirable uniformity in basic principles of the criminal law throughout Australia. Variations in local opinion may result in divergencies in matters of detail in the criminal law. But in matters of general principle, it is highly desirable that unnecessary discrepancies be avoided or, at least, reduced.
2. In giving meaning to a particular phrase or word in a code, it is important to read it in the context of the code taken as a whole (cf Jervis at 652). ..."

95 Resort to the common law is appropriate only where the language of the Code is ambiguous (R v Lockwood; Ex parte Attorney-General [1981] Qd R 209) or has a technical or special meaning acquired at common law (R v Johnson [1964] Qd R 1) or there is a lacuna which it is necessary for the common law to fill (Callaghan v The Queen [1952] HCA 55; (1952) 87 CLR 115; R v Scarth [1945] St R Qd 38.

96 In Boughey v The Queen [1986] HCA 29; (1986) 161 CLR 10, the High Court was concerned with the proper construction of s 184 of the Criminal Code (Tas) ("the Tasmanian Code") which provided that any person who unlawfully assaulted another was guilty of a crime. The Tasmanian Code defined "assault" but not the notion of "unlawful" in s 184. The Court held (at 24) that an assault would be unlawful for the purposes of that Code unless it were justifiable or excusable under particular provisions of the Code or according to rules and principles of the common law and its applicability was not excluded by the expressed provisions of the Code. However, that conclusion turned on s 8 of the Criminal Code Act 1924 (Tas), which provided that all rules and principles of the common law which rendered any circumstances of justification or excuse for any act or omission, or a defence to any charge upon indictment, shall remain in force and apply to any defence to a charge upon an indictment except insofar as they were altered by, or were inconsistent with the Tasmanian Code. There is no equivalent provision in the WA Code.

97 The WA Code is not necessarily wholly self-contained. An example of where it probably is not, is in relation to the definition of provocation reducing wilful murder or murder to manslaughter.

98 In Kaporonovski (supra), the High Court held that the definition of provocation contained in s 268 and s 269 of the Qld Code (equivalent to s 245 and s 246 of the WA Code) applied only to offences in the definition of which an assault is an express element. McTiernan ACJ and Menzies J referred to an argument which had been put to the effect that if the definition of provocation in s 268 of the Qld Code were confined in that way, it would not extend to provocation in s 304 (s 281 of the WA Code). As to that, their Honours observed (218 - 219) that:

"... It was suggested that one consequence of not taking the definition in s 268 into s 304 would be that the Code would not be an entirely self-contained statement of the criminal law. It seems to us, however, that even if the definition in s 268 were to be taken into s 304 - and the words 'sudden provocation' themselves suggest that it should not - the Code would still not be self-contained. Section 304, unlike s 269, does not itself express the conditions upon which provocation is given legal effect. The conditions stated in s 269 cannot be read into s 304 and it is only to the common law to which reference can be had to determine the circumstances in which provocation, however defined, reduces a killing from murder to manslaughter."

99 That was the construction adopted in R v Herlihy [1956] St R Qd 18 in which it was held that the term "provocation" in s 304 was to be understood according to its meaning at common law. However, there have been several conflicting decisions in Queensland on the point. They were usefully summarised by Gibbs J in Kaporonovski at 235 - 236. A contrary view, namely that s 281 is to be read in accordance with the definition in s 245 of the WA Code, was taken in this State, although that position has been subsequently doubted since Kaporonovski (see Kennedy J in Censori v The Queen [1983] WAR 89, 101 and Steytler J in Hart v The Queen [2003] WASCA 213; (2003) 27 WAR 441 at [24] - [33]).

100 A further example of recourse to the common law in the construction of a criminal code is the introduction of the common law concept of "criminal negligence" by the decisions in R v Scarth (supra) and Callaghan v The Queen (supra). In Scarth the accused was indicted on a charge of unlawful killing after running into and killing a pedestrian while asleep at the wheel of his vehicle. The relevant section of the Qld Code was s 289, which cast a duty on persons to use reasonable care and take reasonable precautions to avoid endangering the safety of others while in control of something that is of such a nature that, in the absence of care in its use, will endanger the safety of others. The court was required to deliberate on the meaning of the terms "reasonable care" and "reasonable precautions", as they appeared in s 289 in the context of examining the trial Judge's directions to the jury.

101 On appeal the accused successfully argued that the trial Judge erred in failing to direct the jury that it was open to them to find that the accused was not criminally responsible for the death of the victim if it was caused in circumstances in which a reasonably careful driver might not have been aware that he was likely to fall asleep, and that if the jury was left with any reasonable doubt, the accused was entitled to be acquitted. Macrossan J (Stanley AJ agreeing) concluded (at 44 - 45) that recourse to the common law meaning of the phrases "reasonable care" and "reasonable precautions" was justified because those phrases in s 289 were not self-explanatory. What was reasonable care could only be determined by some standard, which the Qld Code did not articulate. That being so, those phrases should be given the well-established meaning attributed to them by the common law (ibid, 45 - 46) and so the same degree of negligence which would be necessary at common law would be necessary for liability under the Code.

102 Some commentators (eg Colvin, Linden and McKechnie, "Criminal Law in Qld and WA", 4th ed, Butterworths) suggest it is difficult to find any textual basis for implying the common law standard of criminal negligence into the duty-imposing provisions of the Codes. That was the position taken by Philp J (dissenting) in Scarth.

103 In Callaghan, the accused was charged upon indictment with manslaughter but convicted under s 291A of the WA Code of causing death by failing to take reasonable care and proper precautions in the use and management of a motor vehicle.

104 It was held that the degree of negligence required to warrant a conviction under s 291A (as was applicable then) was the same as the degree of negligence required to warrant a conviction of manslaughter under the WA Code where death is caused by negligence. In both cases the standard of negligence applicable is that set by the common law in cases where negligence amounts to manslaughter. In this case, however, differing from the reasoning in Scarth, the High Court justified importing the common law standard of criminal negligence merely on the ground it would be wrong to suppose the legislature intended in the WA Code to make the degree of negligence punishable as manslaughter as low as the standard of fault sufficient to give rise to civil liability (124). Callaghan stands as authority in Western Australia for the proposition that the common law standard of "criminal negligence" is applicable to negligence under the WA Code.

105 Wilson (supra), upon which senior counsel for the appellant relies here for the common law definition of manslaughter, was the subject of consideration by the High Court in R v Lavender [2005] HCA 37; (2005) 222 CLR 67. In their joint judgment, Gleeson CJ, McHugh, Gummow and Hayne JJ observed ([2]) that, as the High Court had held in Wilson, there are two categories of involuntary manslaughter at common law. They are manslaughter by an unlawful and dangerous act, carrying with it an appreciable risk of serious injury; and manslaughter by criminal negligence.

106 The statutory provision with which the court was there concerned was s 18 of the Crimes Act 1900 (NSW). That defined the crime of murder and went on to provide that every other punishable homicide shall be taken to be manslaughter. Their Honours held (at [30]) that s 18 defined murder, but not manslaughter - except by providing that the latter was punishable homicide that was not murder. Accordingly, it was necessary to go to the common law of homicide in order to find out what was punishable. As their Honours pointed out (at [36]), the reference in s 18 to "'[e]very other punishable homicide' would be incomprehensible without a knowledge of the common law, including the common law as to involuntary manslaughter".

107 However, Lavender does not assist the resolution of the question in the present case. It is wholly distinguishable upon the ground that the Crimes Act 1900 was not a Criminal Code and, although in important respects it modified or added to the common law, it assumed the continuing operation of the common law as a source of legal obligations and liabilities (Gleeson CJ et al, [2], [20], [34] and [36]). The WA Code was deliberately and expressly intended to codify the criminal law (s 2 Criminal Code Act 1913 (WA)).

108 In Ward v The Queen [1972] WAR 36 the Crown argued that s 23 of the WA Code should be construed as expressing the common law with respect to a defence of accident in the circumstances of that case, which would have meant the defence was not available to the appellant. The Court of Criminal Appeal rejected that submission. It was held that s 2 and s 4 of the Criminal Code Act 1913 (WA) require the WA Code to be construed without any assumption that common law doctrines still apply except insofar as they are expressly adopted (citing R v Callaghan [1942] St R Qd 40; R v Martyr [1962] Qd R 398); R v Knutson [1963] Qd R 225; R v Tralka [1965] Qd R 225 and R v Dabelstein [1966] Qd R 411).

109 The appellant was convicted after trial on a charge that he unlawfully killed the deceased. It was not in dispute that the man died as a result of cerebral infarction following a fracture of the skull. This injury could not have occurred as a result of a direct blow from a fist but was consistent with having been caused by the deceased having fallen heavily on some flat, unresisting surface such as concrete.

110 The problem confronting the Crown at the trial was to prove (as it alleged) that the fractured skull, which it was common ground had caused the death, had resulted from a blow inflicted by the appellant and that it was inflicted under such circumstances that the proper conclusion was that the appellant had unlawfully killed the deceased.

111 It was the Crown case that the appellant had punched the deceased intending to do him some harm and that as a result of the blow the deceased had fallen and fractured his skull on the concrete, which caused his death. The defence denied that any blow had been struck. The appellant testified the deceased had aimed a punch at him, he had held up his arm to ward off the blow and the deceased had then fallen down and hit his head on the concrete.

112 Delivering the judgment of the Court (Jackson CJ, Virtue SPJ and Lavan J), Virtue SPJ, having referred to the authorities which require the Code to be construed without any assumption that common law doctrines still apply except insofar as they are expressly adopted, said it must accordingly be concluded that in many respects the Code had made changes in the common law, included amongst which are changes in respect of the elements involved in the crime of manslaughter (page 42). His Honour went on to say (42 - 43):

"... In arriving at a decision on the subject of controversy in this appeal it is, therefore, necessary for us in the first place to look at the Code uninfluenced by the doctrines of the common law, and to construe it in accordance with its natural meaning, in order to determine the ingredients of the crime of manslaughter and the extent to which s 23 provides a defence to it.

The elements of the crime of manslaughter are defined in Chapter XXVIII of the Code. The relevant sections are as follows:-

Section 268: 'It is unlawful to kill any person unless such killing is authorized or justified or excused by law.'

Section 270: 'Except as hereinafter set forth, any person who causes the death of another, directly or indirectly, by any means whatever, is deemed to have killed that other person.'

Section 277: 'Any person who unlawfully kills another is guilty of ... wilful murder, murder or manslaughter, according to the circumstances of the case.'

Section 280: 'A person who unlawfully kills another under such circumstances as not to constitute wilful murder or murder is guilty of manslaughter.'

In the terms of these sections the elements of the crime of manslaughter are as follows:-

(1) that the accused has caused the death of another;

(2) that he has done so without any intent to kill or do grievous bodily harm or any other circumstance being present which would support a conviction for wilful murder or murder;

(3) that there are present no circumstances authorizing or justifying or excusing the killing in law."

113 The Court went on to conclude that contrary to the position at common law, in light of the authorities discussed, the trend of authority was in favour of the conclusion that in cases under the Code in Queensland or Western Australia where following on an act intended to cause some bodily harm to another, some unexpected occurrence supervenes, which is the immediate cause of injury to the person struck from which he dies, if that occurrence was not intended or foreseen and was unlikely, the death of such person would be an accident within the meaning of s 23 and the act in question would not amount to manslaughter. Accordingly, the trial Judge had erred in not acceding to the request of counsel for the appellant to put the question of accident to the jury.

114 The appellant contends there is a lacuna in the Code. It is said to concern the notion of involuntary manslaughter which requires that death be caused by an unlawful and dangerous act which the ordinary person would see involved a substantial possibility of serious harm. It is submitted the WA Code does not deal with that and consequently the words "unlawfully kills" in s 280 must be construed as incorporating the common law concept of involuntary manslaughter. The submission is that an unlawful killing with intent to kill is wilful murder, an unlawful killing in any of the circumstances in s 279 is murder, but unlawful killing without specific intent or the other circumstances in s 279 is only manslaughter if it would be "unlawful" because it fell within the scope of involuntary manslaughter at common law. The submission then goes on to say that on the evidence of this case, involuntary manslaughter by an unlawful and dangerous act involving a substantial possibility of serious harm was a defence which arose on the evidence and as the trial Judge did not leave it to the jury in those terms there was a miscarriage of justice.

115 I do not consider there is the lacuna suggested.

116 The common element for each of wilful murder, murder and manslaughter under the WA Code is that the killing be unlawful. Possibility (6) as identified by senior counsel falls within the first limb of s 23 of the Code (involuntariness, or killing by an unwilled act). Possibility (5) falls within the second limb of that section (an event which occurs by accident - that is resulting from a willed act not intended to cause death and where death was not foreseeable by an ordinary person (R v Martyr (supra); Mamote-Kulang of Tamagot v The Queen [1964] HCA 21; (1964) 111 CLR 62; Ward v The Queen (supra)).

117 The latter would include a case in which the act causing death was a dangerous act carrying with it an appreciable risk of serious injury, albeit one which an ordinary person would not foresee as likely to cause death.

118 In my opinion, the provisions of the WA Code in Ch XXVII and s 23 (involuntariness/accident) and possibly s 24 (mistake of fact) constitute a comprehensive and complete statutory structure for the determination of what homicides are unlawful and whether they constitute wilful murder, murder or manslaughter or do not attract criminal responsibility at all. There is simply no need to look outside the Code to extend or limit the offence of manslaughter beyond the scope of that offence which the Code sets out. Nor is there any need to look for, nor to import, any notion of unlawfulness for the offence of manslaughter beyond that which applies to the concept of "unlawful killing" as it applies to wilful murder or murder. Section 268 defines unlawful killing for the purposes of each of s 278, s 279 and s 280 (and infanticide). The concatenation of those provisions in the same chapter of the WA Code and the structural way in which that chapter deals with the various categories of unlawful homicide make it clear that the words "unlawfully kills" are to be taken to have the same meaning (contained in s 268) in each of those sections. That conclusion is put beyond doubt by s 277. The analysis of the elements of the offence of manslaughter in Ward presents no difficulty of application by reference to the WA Code provisions allowing authorisation, justification or excuse. I cannot accept the appellant's submission that the offence of manslaughter in s 280 of the WA Code is limited by reference to involuntary manslaughter at common law. In my view, that section does indeed define the offence, and it does so in terms which are referable entirely, and sufficiently, to the provisions of the WA Code itself.

119 I turn now to the adjunct submission that effectively manslaughter was taken away from the consideration of the jury altogether and that the directions given by the trial Judge were defective even if the scope of the offence of manslaughter is to be found wholly within the WA Code. The submissions on this were difficult to follow. At this point, senior counsel ranged critically through the directions given by the trial Judge, complaining they were confused and confusing, that they intermingled issues of law and fact, and that they failed to deal at all with the possibility of manslaughter as the result of a violent act.

120 As best as I can identify, the position of the appellant in this respect appears in substance as follows. Mr Richter QC first conceded it was open to the jury to find that the appellant's activities after the death of the deceased were indicative of a consciousness of guilt that he did something wrong to the deceased and "probably" to conclude there was some act of violence. He later elaborated on that, to allow that because of what the appellant told police about slapping the deceased, the jury might find a consciousness of responsibility for the death because of some violence. He submits the direction which should then have been given, was that a finding that the appellant had used violence towards the deceased was capable of supporting an inference of wilful murder, murder or manslaughter. However, on the evidence there was no way of distinguishing between those and consequently the only reasonably available verdict was the least serious possible verdict consistent with an act of violence, namely manslaughter. This submission, of course, does not go to any of the actual grounds of appeal. Nonetheless, as it was central to the appellant's oral argument, I shall deal with it.

121 When this submission was advanced at the hearing, the Court queried whether it was inconsistent in principle with the decision of the Court of Criminal Appeal in Greer v The Queen, unreported; CCA SCt of WA; Library No 960120; 6 March 1996 ("Greer (1996)"). Senior counsel said it was not necessary to go to the issue whether that case was rightly decided because it could be confined to its own facts in terms of the argument in this case.

122 In my opinion the submission that the jury would not have appreciated that one option open to them was to find manslaughter by way of a violent intentional act from which an ordinary person would not foresee death resulting, but where it in fact did result, is without substance in any event. It is, in effect, a claim of accident. As I have already observed, that would fall within the scope of s 23 of the WA Code. Mr Richter QC submits accident was a live issue in this case because of the account the appellant gave to the police. But it is put here on a very specific factual basis, namely that the appellant slapped Coates' face causing him to fall to the floor and hit his head on the concrete, thereby suffering an injury which caused his death.

123 This factual scenario is put so specifically because Mr Richter conceded the trial Judge had in fact correctly directed the jury in relation to the account actually given by the appellant to the police, which was that he slapped Coates and then some two hours later Coates fell off his chair and hit his head on the concrete floor and died. The trial Judge expressly adverted to this scenario and directed the jury that if they could not discount the death having been caused in that way - if they thought it was a reasonable possibility - they would have to return a verdict of not guilty.

124 There are insurmountable obstacles to this submission. The scenario sought to be relied upon is wholly speculative. There is simply no evidentiary foundation for it. The appellant never said the death occurred in that way. Further, in his testimony, he swore that the account he gave the police was false. Even if the jury disbelieved his testimony (as they must have done), the account he did give the police was not the same as that upon which the appellant now seeks to rely and, in light of the directions given by the trial Judge, the jury must have rejected that also, in any event. There was therefore no possible evidentiary basis for the scenario now sought to be relied upon.

125 Neither is there any merit in the submission that the directions given by his Honour effectively removed manslaughter from the jury.

126 In the course of his submissions on this point, senior counsel made certain criticisms of the phraseology used by the trial Judge. On a limited reading of the transcript there is some apparent justification for some of those criticisms. For example, his Honour's references to disposal of the body included:

"... this is the question for you - to conclude if you're satisfied beyond reasonable doubt that by disposing of the body as he did, the accused caused the death of the deceased ..."

"... What the state [sic] says is that disposing of the body as he did (a) the accused caused death, and (b) the death was a result of violence ..."

127 Senior counsel says those propositions clearly cannot be correct. If that was all there is, I would have to agree. But expressed in that way, those propositions are obviously nonsense, and it is not all there is. His Honour immediately went on to explain, by way of reiteration, that it would be open to the jury to conclude that the act of concealing the body was to conceal the fact the death was a result of violence. When those parts of his Honour's directions are read as a whole, it is clear that what he meant was that the inference the appellant caused the death of the deceased could be drawn from the fact (in the circumstances) that he disposed of the body.

128 I turn to the complaint advanced in submissions made in support of ground 2 that the trial Judge effectively withdrew from the jury the possibility of a verdict of manslaughter as a result of some violent act by the appellant.

129 It is true, as McLure JA observes, that at no time did his Honour direct the jury that death caused by a violent act of the appellant was also capable of supporting an inference of manslaughter. But to determine whether this submission is made out, it is necessary to consider his Honour's directions as a whole, and the way in which he structured them.

130 At the commencement of his summing up, the trial Judge handed to the jury various documents. They included the definitions of wilful murder, murder and manslaughter.

131 From the outset and throughout his summing up, his Honour made it clear the jury had to consider four possible verdicts, they being guilty of wilful murder, guilty of murder, guilty of manslaughter or not guilty of anything. He concluded in the same vein, working in detail through how the jury would be asked for their verdicts. This reinforced his earlier directions that manslaughter was a verdict requiring their specific consideration and was one entirely open to them.

132 At various points his Honour emphasised the onus was on the prosecution to prove each element of the offence they were considering and that the burden was proof beyond reasonable doubt.

133 His Honour then moved on to explain inferences, telling the jury they could not draw an inference adverse to the appellant unless satisfied of it beyond reasonable doubt (t/s 522). That direction was unduly favourable to the appellant because that requirement applies only to the inference of guilt or to an intermediate fact essential to a finding of guilt (Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR 573).

134 After dealing with other matters, his Honour returned to a discussion of wilful murder, murder and manslaughter (t/s 529 et seq). He explained the common element to each was the unlawful killing of one person by another. He then moved to the question of causation (t/s 531). I have already set out above the directions which followed at t/s 531 - 535.

135 The first occasion here on which his Honour told the jury that if they were satisfied the cause of death was violence at the hands of the appellant "it would be open" to them to infer from such violence, that the appellant intended to cause Coates' death or at least grievous bodily harm (t/s 532) was in the context of his directions on the question whether the appellant caused the deceased's death. So was his next reference (at t/s 533) when he said:

"... if you are satisfied beyond reasonable doubt that by concealing the body he was concealing the fact that death was as a result of violence, it would be open to you to draw the inference, if you are so satisfied beyond reasonable doubt, that he caused the death and further, he had caused it with an intent to kill or do grievous bodily harm. We will come to that in a minute. So I have just repeated that to try and give you the picture of your first line of inquiry."

136 The "first line of inquiry" of which his Honour was there speaking, was whether the appellant caused Coates' death. His Honour emphasised here that the jury could only draw the inference that the appellant caused Coates' death - or that he did so with intent to kill or do grievous bodily harm - if so satisfied beyond reasonable doubt.

137 His Honour then moved to the next question, which was whether the killing was unlawful. He directed the jury (at t/s 533) that in the circumstances of this case, the killing would have been unlawful. No issue is taken about that.

138 The trial Judge then said (t/s 534) that if an unlawful killing by the appellant had been proved beyond reasonable doubt, the crime could be any one of wilful murder, murder or manslaughter. He proceeded to explain the elements of those offences. He began with manslaughter, correctly saying it is an unlawful killing with no particular intent. He gave the example of motor vehicle manslaughter. That was an unfortunate one to give - negligent manslaughter was not an issue in the case. It would have been more useful to the jury to ask them to consider whether there was a reasonable possibility the appellant caused Coates' death by some violent act but without any intent to kill or cause grievous bodily harm. Nonetheless, I am of the view that in the end the option of a verdict of manslaughter on that basis was left to the jury, albeit not in those express terms.

139 His Honour then went on to discuss wilful murder and murder. He said wilful murder is an unlawful killing with intent to kill. He said that murder is an unlawful killing with intent to cause grievous bodily harm.

"... an intention just to harm or hurt someone without more would not lead to a verdict of murder."

"... proof of an unlawful killing by the accused with no proof of any intention either to kill or do grievous bodily harm is manslaughter."

"... intention to kill is a fact. It must be proven beyond reasonable doubt. Intention to cause grievous bodily harm is a fact and it must be proven beyond reasonable doubt ..."

"... if on all of the evidence you're satisfied beyond reasonable doubt that he did unlawfully kill the deceased and he had the intention either to kill or do grievous bodily harm he would be guilty of either wilful murder or murder."

142 I am unable to agree with McLure JA that the trial Judge effectively withdrew from the jury the possibility of a verdict of manslaughter as the result of an intentional violent act by the appellant. I do not read his Honour's directions on this as suggesting the death caused by a violent act of the appellant was only consistent with wilful murder or murder. He was suggesting those inferences were open - as they were. His repeated directions about the requirement to be satisfied beyond reasonable doubt of an intent to kill or cause grievous bodily harm and an intention short of one to kill or cause grievous bodily harm not being sufficient for wilful murder or murder respectively, made it clear. If the jury were satisfied beyond reasonable doubt that the appellant had killed Coates by an intentional act of violence, but not so satisfied he had an intent to kill or cause grievous bodily harm, on his Honour's directions they would inevitably have been led to a verdict of guilty of manslaughter.

143 In light of his Honour's summing up as a whole, I do not think that the jury could reasonably have been left with the view that his Honour was directing them that a finding that the appellant had caused Coates' death by some intentional act of violence was consistent only with an intent to kill or cause grievous bodily harm.

144 I am not persuaded the effect of the trial Judge's directions as a whole was to rule out manslaughter by an act of violence of the appellant.

145 The real point of substance in the submissions advanced on grounds 1 and 2, it seems to me, is whether, in the absence of any evidence of the cause of death, it was open to the jury to find any unlawful killing other than manslaughter. That is to say, whether in the absence of a cause of death, there was yet a proper evidentiary basis upon which the jury could find either an intent to kill or an intent to cause grievous bodily harm.

146 That brings the case directly to the decisions of the Court of Criminal Appeal in Greer.

147 In August 1993, Greer had been convicted of the wilful murder of Sharon Mason on 19 February 1983 and sentenced to strict security life imprisonment. On 2 June 1994, the Court of Criminal Appeal (Kennedy, Franklyn and Ipp JJ) upheld his appeal against conviction, quashed the conviction and ordered a retrial (Greer v The Queen, unreported; CCA SCt of WA; Library No 940286; 2 June 1994 ("Greer (1994)")). On 25 November 1994, on his retrial, Greer was acquitted of wilful murder, but convicted of murder. He appealed against that conviction. On 6 March 1996, the Court of Criminal Appeal (Pidgeon, Wallwork and Scott JJ) dismissed the appeal (Greer (1996)).

148 Only a brief summary of the evidence in that case is necessary; more will be apparent from references below to the judgments in those two appeals.

149 On the morning of Saturday 19 February 1983, Sharon Mason, a young girl, alighted from a bus on Stirling Highway at Mosman Park on her way home to a unit where she lived with her mother. She never arrived. She had to walk past Greer's shop, which was open at that time. Some nine years later, her substantially decomposed body was excavated in the course of a developer's earthmoving works behind Greer's shop. The pathologist and forensic scientists were unable to say how she had died or to identify a cause of death.

150 Ground 6 on Greer's first appeal complained of an error of law, or alternatively, a miscarriage of justice in that (amongst other matters) the Commissioner at trial had directed the jury that if they were satisfied Greer had killed the deceased, and despite there being no evidence of the circumstances in which he killed her, nor any evidence as to whether he killed her with an intent to kill, nor with any intent at all, they were "entitled to use [their] experience in judging this question" to conclude that he must have taken her life with the intention of killing her. As to this, Kennedy J (with whom Franklyn and Ipp JJ agreed) said (at 44 - 45):

"It may have been preferable for the Commissioner not to have referred to the members of the jury using their ordinary experience of life and using their experience precisely as he did; but I do not consider that this could have deflected the jury from their proper task. The first direction complained of appears in a passage in which there were three references to the jury's having to be satisfied beyond reasonable doubt, and the second appeared in a passage in which there were five references to the jury's having to be satisfied beyond reasonable doubt. The passages came not long after a clear direction that, before they could draw an inference of guilt against the applicant on any of the inferences to which the Commissioner referred, they would have to be satisfied beyond reasonable doubt that it was the only inference that could be drawn, and that if there were any other inference consistent with the innocence of the applicant that could be drawn, they had to draw it. He stressed the importance of this direction at considerable length, and he repeated it in a variety of forms. He made several references to the importance of the jury's not resorting to guesswork or to speculation. The passage complained of in para (3) contains a reference to the Commissioner's directions as to circumstantial evidence, which he had already given, and which he later gave. Those directions were entirely adequate.

In this context, it is of interest to note how, in Plomp v The Queen [1963] HCA 44; (1963) 110 CLR 234, at 243, which concerned the alleged drowning by the applicant of his wife, Dixon CJ, in the course of his judgment, made use of the expression 'human experience'. He said:

'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.'

He had previously cited a passage from his judgment in Martin v Osborne [1936] HCA 23; (1936) 55 CLR 367, at 375, in which he had said:

'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 the conduct pursued. ... [T]he class of acts and occurrences that may be considered includes circumstances whose relation to the fact in issue consists in the probability or increased probability, judged rationally upon common experience, that they would not be found unless the fact to be proved also existed.'

Having considered the totality of the Commissioner's directions, I do not consider that the jury could have been under any misapprehension as to the fact that they were not to speculate, whether on the basis of their own experience or otherwise."

151 Ground 7 of Greer's first appeal asserted that the verdict was unreasonable and could not be supported having regard to the evidence in that the evidence was not capable of establishing beyond reasonable doubt that the appellant killed Sharon Mason, then having an intent to kill her. Kennedy J did not deal with that ground at all, having decided the appeal should be allowed on another ground. However, his Honour did consider whether a finding of an intent to kill was open on the evidence, in the context of discussing whether or not a new trial should be ordered. On that he said (at 49 - 51):

"In my opinion, it would be open to a jury to find the following facts to the required standard, although it must be stressed that it would be for the jury to decide whether or not to do so:

(a) the deceased alighted from a bus close to the applicant's shop at approximately 11.15 am on 19 February 1983;

(b) the behaviour of the deceased at the time was entirely normal;

(c) a convenient route to her mother's flat where she was living, and to her father's flat which she was accustomed to visit, lay in front of the applicant's shop;

(d) the applicant was working alone in his shop at the time;

(e) the neighbouring shop closed between noon and 1.00 pm on that day, and the proprietors, Mr & Mrs Allan, then left the premises;

(f) the applicant lived alone in the accommodation at the rear of the shop;

(g) the deceased did not return to her home to meet her friend, as she had arranged, for them both to walk to their part-time job that afternoon at 5.00 pm;

(h) the remains of the deceased were found buried in a place which, in 1983, had been under a shed in the back area of the shop;

(i) the body was buried prior to the removal of the shed and the bitumenising of the area behind the shop in 1985;

(j) the shed was under the control of the applicant and was locked at least part of the time;

(k) the shed was close to the rear entrance to the shop premises;

(1) the body was contained in a white plastic bag, of the type in which dresses were supplied to the applicant and which were available in the applicant's shop;

(m) the bag was tied with a yellow taffeta ribbon;

(n) the ribbon was of a type which had been stocked in the shop and some of which was to be found in the shop or in the shed;

(o) the body was buried with a mask which had been in the applicant's possession and kept in the shop or in his living area;

(p) the recovered mask bore traces of human blood;

(q) the applicant falsely denied having owned or possessed the mask;

(r) the only clothing with the remains of the deceased was a pair of briefs which gave reactions for blood;

(s) the deceased [sic applicant] had the opportunity to kill the deceased and to bury her body where it was found.

A jury would no doubt have to consider whether the body was buried shortly after the deceased's disappearance, and if they concluded that it was buried shortly after this time, the likelihood of someone other than the applicant having taken the body into the shed at a time when it was unlocked and buried it without, apparently, the applicant's having noticed anything unusual in the shed.

In my opinion, in all the circumstances, it would be open to a jury, properly directed, to find, beyond reasonable doubt, that the deceased died a violent death, that the applicant was the person who buried the deceased and that he did so having killed her and having intended to kill her ..." (My emphasis)

152 One of the grounds on Greer's second appeal, was that there was insufficient evidence to show the appellant had caused Sharon Mason's death. On that ground, Pidgeon J said (Greer (1996), at 48) that once the conclusion could be reached that he had buried the body, it would, in his Honour's view, be a short step to conclude that he did the act which caused the death and that the manner in which the body was buried would of itself be strong circumstantial evidence.

153 Ground 6 in that appeal was that there was no evidence from which the jury could infer a specific intent to kill or cause grievous bodily harm. As to this, Pidgeon J said (ibid, at 49):

"I have indicated that I consider there was sufficient evidence where the jury could safely reach the view that the deceased [sic: died?] by the appellant's hand and was buried by him. It is submitted that if this view could be reached, there is no evidence as to the appellant's intent. It is not known in what way he caused the death. Ground 4(1)(a) states that the Crown failed to establish the cause of death or any bodily injury to the deceased. If the argument suggested by these grounds were taken further, then it could be argued, at law, that if the proven facts were that the accused person did an act to cause a person's death; successfully disposed of the body so no trace was found and elected to make no statement to the police or give evidence at the trial, then he could not be convicted of an offence other than manslaughter. This is not the law. As I see the law, it is open to conclude that if it were proved that a person did the act to cause the death followed by disposing of the body so it is not recovered and with nothing else being known, he can be convicted of murder." (Emphasis added)

154 His Honour went on to discuss a number of cases in which it had been held that both the fact of death and the necessary mental element in the accused could be inferred notwithstanding the absence of a body or a cause of death. They were R v Horry [1951] NZCA 24; [1952] NZLR 111; R v Onufrejczyk [1955] 1 QB 388 and R v Camb (1948), unreported; Notable British Trials; Edited G Clark; William Hodge & Co Ltd.

155 I discussed those authorities and others on this point in Macartney v The Queen [2006] WASCA 29; (2006) 31 WAR 416 at [438] - [455]. I adhere to what I said there, but do not now repeat that. What the cases do show in my opinion, is that the drawing of inferences is very fact specific and it is not the principle which is in question here, but rather whether the evidence in the individual case goes far enough to enable a particular inference to be drawn. The same point was made in Macartney at [454]:

"... Buckland demonstrates that in the absence of a body, or physical proof of cause of death, an accused may yet be convicted of an homicide involving a particular specific intent. That is to say, wilful murder or murder. What is required is other evidence, be it direct or circumstantial, from which the fact that the accused killed the victim and that they did so, for example, with an intent to kill or to cause grievous bodily harm, can be found beyond reasonable doubt. In that regard, Owen J succinctly outlined the salient features in Buckland, at 5 of his reasons. He referred:

'... to the deteriorating relationship, the prior assault, the earlier threat to "see [the deceased] dead" if she took the baby away, the disposal of the body, the attempts to deflect attention from the disappearance and the statement to the deceased's mother about giving part of a life for a life. Much of this evidence is circumstantial but to describe evidence as circumstantial does not mean that it is less reliable than other evidence. However, the process of reasoning necessary to sustain a finding of guilt includes the requirement to exclude every reasonable hypothesis which is consistent with the person's innocence. In my opinion it was open to the jury to conclude that the inference of an intent to kill was "the only inference open to reasonable [people] upon a consideration of all the facts in evidence": Peacock v R [1911] HCA 66; (1911) 13 CLR 619 per O'Connor J at 661.

If, as I believe to be the case, it was open to the jury to be satisfied that the applicant caused the deceased's death and that he did so unlawfully, then in the circumstances of this case the jury would have been entitled to discard the possibility that it should acquit the applicant or return a verdict of guilty of manslaughter. The choice was then narrowed to wilful murder or murder. It was for the jury to decide whether it was satisfied beyond reasonable doubt that the intent with which the applicant acted was to kill or to cause grievous bodily harm' ..."

156 In Greer (1996), Pidgeon J adverted (at 55) to Weissensteiner v The Queen [1993] HCA 65; (1993) 178 CLR 217, pointing out that was a case in which the accused was found guilty of murder on circumstantial evidence when no body had been found but the accused was in a position to say what happened to the two deceased and gave untrue accounts as to their whereabouts. He noted that the question whether there was sufficient evidence from which to infer intent did not arise on the appeal.

157 Greer subsequently applied for special leave to appeal to the High Court. Special leave was refused (Greer v The Queen, P/13 of 1996 (30 May 1997)). One of the grounds on which special leave was sought, was that the circumstantial evidence was not sufficient to enable a finding of intent to kill. In rejecting the application for special leave, the court (Dawson, Toohey and Kirby JJ) said there was insufficient reason to doubt the correctness of the decision in the Court of Criminal Appeal.

158 Another case in which the Crown relied upon concealment of a body but where there was no evidence of cause of death was R v Rice [1996] 2 VR 406. There the appellant had been charged with the murder of his girlfriend. Arrangements had been made for them to stay at a Victorian motel for the weekend, after which she was to fly to Perth for her sister's wedding, before returning to work in Melbourne. The appellant told a number of people he had dropped her off at the airport. He was the last person to see her alive. Her body was subsequently found wrapped in plastic and packed with lime in a 44 gallon drum the appellant left, together with other items, with an acquaintance. He told numerous lies about where the deceased was and other relevant matters.

159 At the close of the Crown case, a no case submission was made in relation to the charge of murder. That was put on the basis that assuming it was open to the jury to find the applicant had caused the death, the inference could not be drawn that he had done so with the specific intent necessary for murder. As Brooking JA (with whom Charles JA and Southwell AJA agreed) observed in relation to that, it was made clear in the course of discussion at trial, that the applicant's counsel was not submitting the jury could not find the applicant had caused the death by an unlawful and dangerous act, so as to be guilty of manslaughter: it was accepted that the trial should proceed as a manslaughter trial. The trial Judge so ruled. The applicant was convicted of manslaughter. As to that, although it was not in issue on the appeal, Brooking JA said he would not have withdrawn the case of murder from the jury, having regard to the whole of the evidence, which in his view permitted a finding that the applicant strangled the victim (420).

160 The principal grounds of appeal alleged misdirection on lies told out of a consciousness of guilt.

161 Brooking JA discussed a number of authorities which considered the inferences which may be drawn about the way in which death came about, when the cause of death cannot be shown and there is no eyewitness and no admission.

162 His Honour held (415 - 416) that there is no authority for the proposition that an accused must be found to have acted out of a consciousness of guilt of a particular offence where the wrongdoing may cover a number of possible charges. He said that in relation to the threshold question as to whether the conduct, whether it be a false denial or otherwise, is relevant and material, it is not always meaningful to ask whether the accused was portraying consciousness of guilt of the crime charged because at the time the conduct occurs, the accused is presumably not thinking of guilt of a specific offence, much less of a series of alternatives - the question rather is whether he is portraying a consciousness of being implicated in the actus reus, whether it be the killing or the robbery, for example.

163 On the possibility that the victim had died from natural causes or in any other circumstances than those of an unlawful and dangerous act on the part of the applicant, his Honour posed the question (421) what did the applicant have to fear if her death came to light?:

"Any reasonable person must have realised that, by concealing her body and her death as he did, and telling the lies which he told, he ran a great risk that, if the body was found, he would be charged with murder. Why should a man take such a risk if the explanation of the death was an innocent one?

She must have known when she cast the body into that place that if it ever was discovered, and if the fact came to light that she was the person who had thrown it there, a surmise would arise that she took the course in order to dissemble a homicide and the manner in which it had been effected.

State v Kader 270 P. 2d. 160 (1954) at 173."

164 In the present case the fact of death was proved by the discovery of Coates' body. The jury would have been entitled to regard what the appellant said to police as evidence that he had used violence to the deceased on the day he died. The State did not allege any particular motive (and nor was it necessary for it to do so: s 23 of the WA Code), although on the appellant's account to police in his own evidence - as well as from other witnesses - the jury could well have accepted that he regarded Coates as an unwelcome burden and inconvenience, that he treated Coates badly and became angry and frustrated with him, and physically violent towards him. The fact that (on either version) he left the body wrapped in plastic in the car boot overnight and then drove around for many hours the following day before leaving it behind a log off a bush track, suggests a more sinister involvement than an immediate panicked response to an unexpected and dreadful event, not involving real criminal culpability of his involvement in Coates' death. On Chapman's account, supported by telephone records, the appellant telephoned him on 18 July telling him to come to Perth. As he did not arrive until 20 July, the jury could properly have found the body had already been in the boot wrapped in plastic for at least a day when Chapman got there and that it remained there overnight and for most of the following day while they drove around looking for a place to dispose of it. The manner of the appellant's disposal of the body, his maintenance of his false story to his wife and anyone else that Coates had simply gone away when the appellant told him to "piss off" and the continuing claims for, or acceptance of, moneys from the Public Trustee on Coates' behalf, the numerous lies admitted by the appellant, as well as what the jury must necessarily have found to have been lies he told about Chapman's involvement in the death, in combination with the other circumstances, were in my view capable of supporting the necessary finding that the appellant killed Coates and that he did so then intending at least to cause him grievous bodily harm.

165 It was open on the evidence for the jury to be satisfied that, according to the common course of human affairs, the degree of probability that in those circumstances the appellant killed Coates intending to cause him grievous bodily harm, was so high that the contrary could not reasonably be supposed (Martin v Osborne [1936] HCA 23; (1936) 55 CLR 367). The answer to the argument that there was no evidentiary basis to distinguish between intent to kill and intent to cause grievous bodily harm is the realistic possibility that one or more jurors were not satisfied beyond reasonable doubt of an intent to kill, but all were satisfied to that extent that the appellant must have had at least an intent to cause grievous bodily harm.

166 For the foregoing reasons, I would reject grounds 1 and 2 and the further submissions directed to the proposition that the evidence was insufficient to enable the jury properly to return a guilty verdict other than manslaughter, or upon which to find an intent to cause grievous bodily harm. I turn now to ground 3.

167 The evidence to which ground 3 refers is that relating to the money held by the Public Trustee in trust for Coates and which was to go to the appellant's wife in the event of Coates' death. The submission was initially that the evidence ought to have been excluded as a matter of discretion because it was unduly prejudicial, but it became one that the evidence was inadmissible.

168 Witnesses called by the prosecution from the Public Trustee's office gave evidence that on 8 January 2001 the Public Trustee received $415,625, being the amount payable to Coates under an order of the District Court. On 10 January 2001, the office wrote to Mrs Roberts, who had been acting as Coates' next friend in the District Court, advising her of the receipt of the money. On the same day there was a telephone conversation between a staff member from the Public Trustee's office and the appellant, about the management of the fund. Subsequently the appellant went to the office to discuss certain proposals for the use of the money. One was that it could be used to purchase Coates' Homeswest unit; another was that money be advanced to enable extensions to be built on the Roberts' home for Coates. These discussions however, were only general and nothing came of them.

169 It seems that later, Mrs Roberts requested the Public Trustee to pay the Homeswest rent on Coates' unit. Those payments commenced on 16 March 2001 with an initial payment of $226.24 and regular payments, first of $42.50 but rising in May 2001 to $85 and by April 2004 to $164 per fortnight. The Public Trustee also paid $300 per fortnight to the joint account of the appellant and his wife for Coates' board and lodging and other needs from 19 January 2001. The Public Trustee stopped the Homeswest rental payments on 22 April 2004 and the $300 payments were stopped on 27 May that year.

170 On 19 February 2001, two officers of the Public Trustee, Mr K Dillon and Mr P Williams, sent by facsimile to the appellant and his wife, a letter requesting a meeting. They particularly wanted to meet Coates, both as a matter of courtesy and so as to have a better understanding of his situation. Eventually there was a meeting at the Public Trustee's office with the appellant and his wife, but Coates was not present. The appellant told Dillon and Williams that they had not brought Coates because he would have thought they were trying to lock him away in an institution. Dillon and Williams said they still wanted to see him, but that never happened.

171 On 26 July 2001, the appellant sent a fax to the Public Trustee's office. Dillon spoke to the appellant about it. In that letter (exhibit F2) the appellant advised that when Coates' carer was unable to be in residence at the Homeswest unit, Colin was housed with his carer and immediate family at their home at Hamilton Hill. The current sleeping quarters and living area available to Coates in an old converted bus, although satisfactory "in most criteria" were said not to afford him the quality of life and privacy that a purpose built unit could provide. The letter continued to say that accordingly they had gone to the expense of building a unit which would fulfil these considerations, at the Hamilton Hill premises. The "current cost" of construction was said to be $23,565. The letter continued:

"The current costs do not include floor covering, curtaining, painting and decorating or any furnishings.

We the undersigned by way of this letter are requesting that the Public Trust reimburse the costs of construction thus far.

Whilst Colin's current situation remains manageable by ourselves, the unit will be used exclusively for Colin's and his carer's accommodation.

Since Colin's accident he has regularly been accommodated for long periods of time by ourselves at no cost. We see no reason for this to change in the near or distant future."

The letter was unsigned but was over the names "F.G. & D.J. Roberts".

172 The Public Trustee never approved any payment on that claim. There were concerns that no approval from the Public Trust office had been sought to build it and they were being presented with a fait accompli, that the unit was being built on land owned by the appellant and his wife, and as no town planning or shire approval had been sought, those authorities might require it to be demolished and Coates' money would be lost.

173 In his evidence, Williams said that his information was that Dorothy Roberts was Coates' only sister (that is, relative) and in the event of his demise, she would have been the sole beneficiary of his estate.

174 In the absence of the jury, prior to the appellant's arraignment on 2 November 2005, his Honour dealt with an application that had earlier been filed by the appellant under s 118 of the Criminal Procedure Act 2004 (WA) seeking trial by Judge alone. His Honour refused the application. The transcript indicates that the application was based on a submission that the nature of the evidence about Coates' disabilities, the injuries he suffered in the vehicle accident, and the circumstances of the trust fund being administered by the Public Trustee, would be prejudicial to the appellant in that a jury would not be likely to bring to it "the same maturity and assessment ... as a single judge" (t/s 22). When his Honour queried why that could not be overcome by a direction not to allow their sympathies to be influenced, counsel said (t/s 23) that on his understanding, the prosecution case was "threaded around" the $400,000 approximately as being a motive for the appellant to have killed the deceased. He said that the appellant's wife was the sister of the deceased "... and a potential recipient of the $450,000". Furthermore, it was submitted, the evidence concerning Lewandowski and Chapman importing a consignment of drugs for him, as well as other matters, were such that there were (t/s 25):

"... many twists and curves in the prosecution and the defence case which, at the end of the day, may be better dealt with by judge alone."

175 In his submissions, the State prosecutor dealt with the issue of motive in the following way (t/s 27):

"STONE, MR: Your Honour, if I can just clear up one issue. It's not the state's [sic] case that the deceased was killed for the $400,000. We say that the continued payments by the public trustee to the accused and his wife over a three-year period for the board and lodging and to pay for the Homeswest unit was part of a concealment. It's not our case that he - we don't know why he killed him on the day but we're not saying it was for the 400,000. We're saying that's part of the cover-up and - although he may have killed him for that money.

MILLER J: So it's not - the prosecution won't be saying there's a motive here that you may consider, namely, that Roberts' wife may have got 400,000? That's not part of the prosecution - - -

STONE, MR: No, we won't. Although that itself as fact may come out - and I'm sure it will come out - we're not standing up and saying that's why he killed him.

MILLER J: No. You could cross-examine him about it presumably, if he gives evidence.

STONE, MR: We will. We will indeed.

MILLER J: Yes.

STONE: But we say that there are other factors and we're not really putting a motive to the case.

MILLER J: Not setting out to prove it that way.

STONE, MR: No, sir."

176 Having ruled on that application, his Honour moved on to consider objections to parts of the evidence to be given by prosecution witnesses and of which notice had been given. Those ranged over numerous matters, but included evidence from the officers of the Public Trustee's office about the financial arrangements concerning the trust fund and their dealings with the appellant. The pertinent objection was expressed at t/s 33:

"SULLIVAN, MR: The rest of the content [of the witness Dillon's statement] we say, your Honour, is irrelevant to the charge. Financial background to the events is irrelevant. The accused's wife, Dorothy, she would have been paid the money by the public trustee, whether it be the $400,000 or the interim payments. Whilst it's true that Dorothy, the wife of the accused, and the accused share an account, the fact is that Dorothy is the person to whom the payments were afforded [sic]. My instructions are the money has never been sought, this $400,000."

177 That seems to have been an objection that the evidence was irrelevant because it was the appellant's wife, not the appellant, who stood to benefit financially from payments out of the trust fund.

178 When the trial judge opined that it all seemed apt to go to the circumstances in which moneys were paid by the Public Trustee to accommodate the deceased at the appellant's home, which seemed to be relevant background, counsel said (t/s 34), it was being done with the intention of building a profile against the appellant that he was a person who did not care for the deceased, that he was "just in and out for the dollar" and to provide a motive.

179 Notwithstanding what the State prosecutor had just said, counsel for the appellant at trial appears to have been fixated on the notion that the evidence was sought to be led to prove motive. That is evident from his next exchange with the trial Judge (t/s 35):

"MILLER J: But if it's true, it's admissible. If it's true, it's admissible. It may not be true. But the fact was that the deceased lived with the accused, the public trustee paid the accused's wife money to care for him and the accused and his wife had decided to do something about building something for him within the house and therefore they were receiving money and after he died they continued to receive money for a considerable period of time without telling the public trustee about it.

SULLIVAN, MR: Yes.

MILLER J: So all that's relevant.

SULLIVAN, MR: But how does it come back to a motive, may I may [sic say?], your Honour?

MILLER J: The crown [sic] doesn't have to prove a motive but it proves the background to the circumstances. The case can't just be an empty case: a man was found in the forest and we know from the confession of the accused that he had fallen off a chair and hit his head. The jury has go to know more about the background to the whole thing. How did he come to be there? What was the relationship between the two of them?

SULLIVAN, MR: Yes. The whole tone of the statements of the witnesses is adverse to the accused.

MILLER J: No, I think that's just factual. He's explaining what he paid - the payment of money seems to me to be totally admissible.

SULLIVAN, MR: As the court pleases." (My emphasis)

180 Although the State prosecutor described the financial arrangements concerning the trust fund in his opening address to the jury, he made no suggestion that was a motive for the appellant killing the deceased.

181 Mr Richter QC concedes all of this evidence was relevant and admissible, except that part which said the appellant's wife stood to inherit the whole of the trust fund on Coates' death. In the end, the only aspect of the evidence which is the subject of this ground, is that the fact the appellant's wife would receive this substantial sum on the death of the deceased was irrelevant and so inadmissible. As I understand it, the submission then is that that evidence was inflammatory and unfairly prejudicial to the appellant - presumably giving rise to a miscarriage of justice.

182 Counsel's addresses to the jury were not transcribed, but the trial Judge made reference to them in his summing-up on this point. At t/s 535 - 536, his Honour said:

"Proof of the existence of a motive on the part of the accused to kill the deceased or proof of motive to intentionally kill or with intent to do grievous bodily harm to kill is not an element that the prosecution must prove. They may prove motive. Evidence of a motive may be cogent evidence that the accused intentionally took the life of the deceased.

Sometimes in marital situations you get evidence that shows that the husband has said numerous times, 'I'd like to kill that wife of mine. I can't stand her and I'm going to get rid of her.' The next thing, they've gone swimming, she has drowned and she never returns. So you might have the state [sic] say in those circumstances he had a motive; they went swimming to make sure she drowned.

There's no motive which is actually relied on in this case. The state [sic] is not saying, 'We have got a motive.' It's not required to prove a motive. There have been indications there could be lurking in the background some financial aspect of it. We do know that Colin Coates got a reward of $415,000-odd for his motor vehicle claim and that Mrs Roberts is the next of kin who stands to inherit that. The state [sic] is not saying that's the motive and therefore the accused killed him to get that money. It's just one of the facts, background facts, which is there. It's relevant; it's admissible." (Emphasis added)

183 Later, having explained the circumstantial evidence, his Honour referred to some of the facts relied upon in that way by the State. He said they included that the appellant was the last person to see Coates alive; that he disposed of Coates' body in bushland with Chapman; that he wrapped the body in plastic; that he got rid of the plastic so his fingerprints would not be found; that he concealed what happened from his family and everyone else; and that he claimed reimbursement for building the unit on his property when he knew Coates was dead. His Honour then continued: (t/s 539):

"He continued to receive money from the public trustee for his board and lodging, concealing that he was already dead. He didn't tell Homeswest that he was no longer a tenant in the building, the unit. The accused's wife stood to gain financially from the death of the deceased. He actually engaged a private investigator, Lewandowski, to go looking for him when he knew he wasn't there.

Then the state [sic] says look at the relationship between the two ..."

184 The trial Judge then turned to various other aspects of law and the evidence, including the use of lies told by the appellant. Later, he reminded the jury of the arguments that had been put to them by the State prosecutor in his address. At t/s 547 he said:

"He points out the body was disposed of a long way away. The plastic wrapping was disposed of to conceal any evidence. The family was deceived and others and then when interviewed he lied and continued to lie. He says why would he contemplate suicide; he says he did nothing wrong? If anyone did anything wrong it was Chapman. So he says why, just moments later, would he be thinking about running himself into a lighthouse?

Then he says there's a monetary angle to the case and I have already referred to that. There's a lot of money in the background that Mrs Roberts stands to inherit. He refers to the facts [sic fax] received by the public trustee. There was a lot of time spent dealing with that; I won't dwell on it. Mrs Roberts agreed a fax was sent. Mr Dillon said he received one and that he phoned Mr Roberts about it and in his interview there was discussion with the police about the number of bricks and so on that he had used and yet yesterday he says to Mr Stone he says he didn't send it. 'Why?' asks Mr Stone. He points out it's dated 25 July and if Chapman is right, Colin was disposed of on the 20th and so Colin was dead when the fax was sent, which Mr Stone says is evidence of further deceit.

As to the money, the groceries and so on that went to the unit for three years, Mr Stone says who had access to the unit? Who had the key? If the wife was going there every two weeks leaving money and groceries, then the accused took them and it's as simple as that ..." (My emphasis)

185 Later again, still dealing with what the State had put, his Honour said (t/s 549):

"Then he turned to the circumstantial evidence and he said this is damning and compelling because the accused was the last person to see Colin alive. Colin's passport and cards were in the master bedroom. The accused disposed of that body in remote bushland. He disposed of the plastic. He lied. He claimed in a fax the deceased was still there. He continued to receive money. His wife stood to gain financially. He lied to his wife to conceal the wife [sic death]. He failed to call any ambulance."

186 Shortly after that, his Honour turned to what had been said by the defence and then concluded with further general remarks, including reiterating his directions on the onus and burden of proof. He made no further reference to motive, nor to the trust fund.

187 The State made it clear they were not relying on the circumstances concerning "the $400,000" [sic] as proof of motive. Nonetheless, the existence of the trust fund, its origin and the circumstances concerning it, were relevant to the relationship between the appellant, his wife and the deceased. They were also relevant to the appellant's continuing concealment of the death. However, the precise fact that the appellant's wife stood to inherit the whole fund on Coates' death, was not relevant. The State did not rely upon it to prove motive. The trial Judge directed the jury categorically in those terms. But if that fact was not relevant to motive, it seems to me it was not relevant otherwise. The existence of the money and its availability as a source of funds for the appellant and his wife, the payments out of it and the appellant's claim on the fund for construction of the unit, were all relevant, and indeed necessary, background to the ongoing concealment of Coates' death. But the aspect of the potential inheritance did not bear on that at all. It was not a fact necessary to explain any other evidence and, on its own, it was not probative of anything (if not motive). In my opinion that evidence was irrelevant, and being irrelevant, was inadmissible.

188 However, I am satisfied the admission of that single, discrete item of evidence did not occasion a miscarriage of justice. Given his Honour's very clear direction that the State did not rely upon it to show motive, and having regard to the much more extensive properly admissible evidence about the trust fund and the financial arrangements with respect to it, the jury could not conceivably have relied upon it as proof of motive and there was no other way they could have relied upon it which went beyond the use of the evidence properly admitted. In that context, although the appellant has established error of law in the admission of that discrete item of evidence, it did not carry with it that effect or degree of prejudice which would cause me to conclude the conviction should be set aside on that account, nor that the error resulted in a miscarriage of justice. This ground has not been made out.

190 There are two grounds of appeal against sentence. They are:

"1. The sentence was manifestly excessive in that the learned trial Judge failed to give sufficient weight to matters personal to the Applicant including:

1.1 the Applicant's medical conditions;

1.2 the Applicant's age;

1.3 the Applicant's prior good character; and

1.4 the impact on the Applicant's family.

1. The learned trial Judge erred in law in finding that the Applicant had treated the deceased in a very brutal way and had a long history of generally abusive behaviour towards him."

191 Section 90 of the Sentencing Act 1995 (WA) provides that a court that sentences an offender to life imprisonment for murder, must set a minimum period of at least 7 and not more than 14 years that the offender must serve before being eligible for release on parole.

192 Given the verdict, there could be no appeal against the sentence of life imprisonment, which was mandatory (s 282(b) WA Code). The appeal is against the order that the appellant serve 13 years before eligibility for parole (Thompsett v The Queen [2001] WASCA 8). It is submitted that period is at the top of the range available to his Honour and is to be reserved to cases in the worst category of murders. It is submitted this is not such a case.

193 As was made clear during oral argument, although ground 1 asserts the sentence was manifestly excessive because the sentencing Judge made specific errors by failing to give sufficient weight to matters personal to the appellant, the contention really is that the manifest excess is apparent only because the sentence falls outside the range of sentences for this kind of offence (see generally Vagh v The State of Western Australia [2007] WASCA 17 per Roberts-Smith JA at [47] and [49]; McLure JA at [76]).

194 The sentencing Judge commenced his sentencing remarks by relating the circumstances of the offence, noting that the appellant had killed his brother-in-law who suffered a mental disability from birth, but which had worsened as a result of head injuries he sustained in a motor vehicle accident. He observed that Coates was said to have a mental age of eight to 10 years. Coates originally lived in a Homeswest unit at Beaconsfield, but later began to live at the appellant's home at Hamilton Hill, where the appellant was in the process of constructing a unit separate from the house, where Coates could be accommodated.

"I accept evidence that you treated Colin Coates in a very brutal way. The evidence of a neighbour, Mrs Spadafore, that she observed you on occasions making him work sweeping the backyard for the whole of the day and striking him with a handle of a rake was established, in my view, beyond reasonable doubt. Notwithstanding evidence from members of your family that Mrs Spadafore would not have had a view of what was going on in the backyard, I accept her evidence. I'm sure the jury did so too. I also accept that there was a long history of generally abusive behaviour on your part towards Mr Coates. I accept that he was frightened of you and this I find beyond reasonable doubt."

196 The sentencing Judge continued, explaining that on or about 19 July 2000, there was an incident, the exact details of which will never be known, in the course of which the appellant killed Coates. He said the appellant had given many different accounts of what had happened, but none of them could be accepted as the truth. He said the appellant had concealed the body and the fact of the killing. Coates' body was not discovered for three years. By then there was very little left of it and it was impossible to ascertain the cause of death.

197 His Honour found the appellant enlisted Chapman's aid to dispose of the body. He said he accepted Chapman's evidence, as in his view the jury had obviously done.

198 Still recounting the circumstances of the offence and the evidence of the appellant's guilt, his Honour said (t/s 572):

"There was ample circumstantial evidence from which the jury could be satisfied beyond reasonable doubt of your guilt. Your admission that you disposed of the body in the bush and then disposed of the plastic wrapping around it to remove any link between you and the body is eloquent testimony of your involvement in a murder. Your later concealment of what happened speaks volumes for your guilt. I refer particularly to the lies you told your family, suggesting that Colin had simply gone away. I refer also to the deceit of the Public Trust office and Homeswest, both of which bodies were under the impression from you that Colin was still alive. Your wife stands to gain substantially from Colin's death. He had an estate worth more than $400,000. This was another piece of circumstantial evidence which implicated you in his death.

In short, I am satisfied beyond reasonable doubt that the evidence pointed overwhelmingly to you as having caused the death of Colin Coates, having caused it by violence and with the intent to do grievous bodily harm. Because you will not tell the truth as to what really happened, it will never be known precisely how Colin Coates died. This means that your wife, his sister, will never have the satisfaction of knowing exactly what occurred. I do not expect you to ever tell anybody the truth and I accept the submission of the state [sic] that this aggravates the offence. The case of Buckland v R which was decided in April 1998 is authority for that proposition." (My emphasis)

199 I digress to observe that the portion which I have emphasised in that extract is said by senior counsel for the appellant to reflect factual error, for the reasons I have explained above. That is so, in that as his wife's inheritance of the trust fund was not relied upon as motive, it was irrelevant as proof of the appellant's guilt. It was not circumstantial evidence which implicated the appellant in Coates' death. Be that as it may, it is patently clear that his Honour was referring to it only as going to proof of the offence, not as a circumstance which bore upon sentence. Error though it was, it was not one which affected the exercise of his Honour's sentencing discretion in any way. I return to his Honour's sentencing remarks.

200 His Honour adverted to matters personal to the appellant, gleaned from a pre-sentence report, medical reports, character references and other material which had been put to him. He referred to the fact the appellant was then a 54-year-old invalid pensioner with health problems. He mentioned a cardiologist's report in which it was said the appellant has a number of coronary risk factors and it is likely that his coronary disease will progress in the future and require further interventions. The appellant also has had type 2 diabetes for many years and is on a mandatory regime of diet, insulin and oral medication. The report indicated the appellant has a number of chronic treatable, but incurable medical conditions which require optimum medical treatment. It is possible that the severity of his medical problems could be exacerbated under the stresses associated with incarceration. His Honour accepted the prosecution's submission that the prison system would enable the appellant to have such medical treatment as he might require. He took account of the fact that prison may increase the appellant's level of stress and might aggravate his condition, but observed that the prison facilities are designed to assist people who are in poor health and in many ways it would be the case that he would have ready access to medical care which might not otherwise have been available.

201 The sentencing Judge pointed out there was only one sentence he could impose, and that was imprisonment for life. He then noted the provisions of s 90(1) of the Sentencing Act, which required him to set a minimum term not less than 7, nor more than 14 years before eligibility for parole. He continued (t/s 574):

"In setting that minimum period I take account of these factors; firstly, the gravity of this offence. The offence of murder is always a very grave crime but in this case it's a very bad murder. A man has been killed. The precise circumstances are unknown but with violence and in circumstances in which the death was concealed for over three years, and there was a history of abusive and violent behaviour on your part towards this victim who was a man with a very low mental age.

I balance against that the matters personal to you, your age, your health and potential difficulties in incarceration. I take account of the effect on others. Now, your wife is the only relative of the deceased and it is difficult in many ways to know what effect this crime has had on her. It seems clear that you control your wife, as you do with the rest of your family. She gave every impression to me of being fearful of you when she gave evidence and that is not surprising. It is sufficient to say that she has lost her brother in circumstances of a violent but unknown death. She told the pre-sentence report writer that she had some feelings of resentment about not knowing of her brother's death. On the other hand, your refusal to explain what occurred and your disposal of the body in the way you did does aggravate the offence.

So Mr Roberts, please stand while I indicate what the sentence will be. You will be sentenced to life imprisonment. The minimum term, in my view, should be at the higher end rather than the lower end of the range. That is because of the circumstances of the offence, because there is little that can be said in your favour, because you have accepted no responsibility, remorse or contrition ..."

202 His Honour then imposed the sentence he had indicated.

203 Senior counsel for the appellant put to the Court that neither he nor experienced counsel from this State to whom he had spoken, were aware of any case in which a 14 year non-parole period had been ordered for an offence of murder, so that the 13 years set here had to be regarded as "the top of the tree" - and this was not a case which could properly be regarded as in the most serious category of murder. As will be seen, there have in fact been cases in which a period of 14 years has been set before eligibility for parole on conviction for murder.

204 It has been said to be doubtful that where a particular offence stands in the order of seriousness of offences of that kind, affects the order for eligibility for parole. In Jacovic v The Queen [2002] WASCA 149, Miller J (Murray and Parker JJ concurring) referred (at [13]) in that regard to Sherratt [2000] WASCA 112; (2000) 112 A Crim R 177:

"In R v Sherratt ... Murray J (with whom Pidgeon J agreed) said (at [44] - [45]):

'44 ... to frame the ground of appeal, as in this case, so as to assert that the decision of the learned sentencing judge in respect of the minimum period fixed "was manifestly excessive in all the circumstances" is to argue for a proposition which is incorrect as a matter of law. When imposing a life sentence for the crime of murder the minimum period of 14 years is not to be taken as being reserved for the worst conceivable case of murder, short of the offence of wilful murder, a submission implicit in the argument presented by counsel who suggested that Parker J must have placed too little weight upon the various matters having a mitigatory effect if they resulted in the reduction of the minimum period merely from 14 years to 12 years.

1. That is not to say that the matters particularised in ground 1.1 did not require consideration in fixing the minimum period, but in my respectful opinion, the error in the approach exemplified by the ground is made manifest when one comes to ground 1.2. The relevance of an intellectual deficit in the offender to the sentencing process generally was recently discussed by this Court in Halliday (unreported, Court of Criminal Appeal, WA, No 210 of 1997, 3 April 1998) and again in Dalgety [2000] WASCA 10. It was held that the offender's intellectual retardation did not eliminate the aim of general deterrence as one to which a sentence should properly give effect, but that factor would, generally speaking, still operate "sensibly moderated". Those cases were relied upon by the applicant, but in my respectful opinion to do so was to treat the process of fixing the minimum period rather as if it was the imposition of an effective finite term of imprisonment and, as has been seen, that is not the basis upon which the minimum period is to be fixed.'"

205 Jacovic was a case in which an order was made that the appellant serve 14 years before eligibility for parole on his sentence of life imprisonment following his conviction for the murder of his wife. The appeal against sentence was against that order. The appeal was dismissed.

206 In Wood v The Queen [2002] WASCA 175 the applicant had been convicted of murder and sentenced to life imprisonment with a minimum term of 12 years to be served before eligibility for parole. Leave to appeal against sentence on the ground the minimum term was manifestly excessive was refused. Whilst agreeing generally with the reasons of Miller J, Murray J made some additional remarks about the nature of an order made under s 90 of the Sentencing Act. He referred to his conclusion in Sherratt that the minimum period to be fixed in relation to a life sentence, is that period which, in the particular circumstances of the case, justice requires that the offender should serve before becoming eligible for release on parole by way of the mitigation of his or her punishment in an attempt to secure the prisoner's rehabilitation through conditional freedom. His Honour added ([8] - [10]:

"8 All the circumstances relevant to the imposition of sentence are to be taken into account, whether they be concerned with the commission of the offence or whether they be personal to the offender and whether they be aggravating or mitigating in their effect. The Court will be concerned with an exercise of prognostication to determine how long the minimum period of detention must be before the point is reached where the protection of the community no longer requires the offender's detention but may allow, if the Parole Board and the Governor in Executive Council agree, the focus to shift to the offender's rehabilitation by release on parole. It is a discretionary judgment having regard to what such matters as the gravity of the offence and the personal circumstances of the offender reveal about the punishment required and the offender's ultimate prospects of rehabilitation.

1. As I pointed out in Sherratt, it is a mistake to treat the longest period of detention available under the statute as being reserved for some concept of the worst possible or conceivable case of wilful murder or murder, because to do that is to treat the minimum period as if it was the sentence, as if it was a finite term. It may very well be the case that a person who commits a murder in circumstances which are very grave but whose antecedents and personal circumstances are such as to indicate that his or her prospects of rehabilitation are high will have a shorter minimum period set than one who commits the offence in circumstances where his or her moral culpability is somewhat reduced but whose prospects of rehabilitation are judged to be low.
2. In expressing these views in Sherratt, I applied particularly the decisions of the High Court in Bugmy v The Queen [1990] HCA 18; (1990) 169 CLR 525 and Inge v The Queen [1999] HCA 55; (1999) 199 CLR 295. I again expressed these views in Lauritsen v The Queen [2000] WASCA 203; (2000) 22 WAR 442 and the same views were expressed by Miller J, with whom Parker J and I agreed, most recently in Jacovic v The Queen [2002] WASCA 149."

207 Miller J (with whom Wallwork J agreed), observed (at [27]):

"... As I pointed out in Jacovic v The Queen [2002] WASCA 149 there is a question whether the place the offence stood in the order of seriousness affects the order for eligibility for parole. In R v Sherratt [2000] WASCA 112; (2000) 112 A Crim R 177 Murray J (with whom Pidgeon J agreed) expressed the view that it does not. However, on any view, the seriousness of the offence is a relevant consideration in fixing the minimum period, as are matters personal to the offender. ..."

"The fixing of the minimum term is very much a matter of discretion. That discretion is committed to the sentencing Judge. It is of vital importance in the administration of the system of criminal justice that this be recognised. The Court has repeatedly cited Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 at [15] in this respect:

'The principles according to which an appellate court may interfere with such a discretionary judgment by a sentencing judge are well established. In their application to a Crown appeal against sentence they were summarised in R v Allpass and R v Clarke. Of particular importance in the present case is the principle that a court of criminal appeal may not substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing judge exercised his or her discretion. This is basic. The discretion which the law commits to sentencing judges is of vital importance in the administration of our system of criminal justice.'"

209 Leave to appeal against sentence was refused in Hart v The Queen (supra) where the appellant had received a sentence of life imprisonment with an order that he serve 14 years before eligibility for parole, for the murder of his estranged wife. Steytler J (with whom McLure and Pullin JJA agreed) pertinently said ([153] - [156]):

"153 The appellant's principal submission, in his oral submissions before the Court, was to the effect that his Honour was in error in placing this case in the worst category. It is important to bear in mind what was said, in this respect, by Burt CJ in Bensegger v The Queen [1979] WAR 65 at 68, as follows:

'A maximum sentence prescribed by statute is not reserved for the worst offence of the kind dealt with by it that can be imagined. If such were the case it could never be imposed as the addition of further non-existing but aggravating circumstances would never be beyond the reach of imagination. The true rule as I understand it is that the maximum sentence should be reserved for the worst type of case falling within the prohibition or, as it is expressed by Dwyer CJ in Reynolds v Wilkinson (1948) 51 WALR 17, at 18, "for the worst cases of the sort". That expression should be understood to be marking out a range and an offence may be within it notwithstanding the fact that it could have been worse than it was.'

1. Also, in Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465 at 478, Mason CJ, Brennan, Dawson and Toohey JJ said:

'The second subsidiary principle material to this case is that the maximum penalty prescribed for an offence is intended for cases falling within the worst category of cases for which that penalty is prescribed: Ibbs v The Queen ... . That does not mean that a lesser penalty must be imposed if it be possible to envisage a worse case; ingenuity can always conjure up a case of greater heinousness. A sentence which imposes the maximum penalty offends this principle only if the case is recognizably outside the worst category.'

1. Similar comments have, more recently, been made in R v Sherratt [2000] WASCA 112; (2000) 112 A Crim R 177, where Murray J (with whom Pidgeon J agreed) said (at [44]):

'When imposing a life sentence for the crime of murder the minimum period of 14 years is not to be taken as being reserved for the worst conceivable case of murder, short of the offence of wilful murder, a submission implicit in the argument presented by counsel ...'.

1. It is plain, from these cases, that there may be a range of circumstances falling within the worst category of cases. Whether an individual case does or does not fall within that category is a matter of judgment for the trial Judge. ..."

210 The principle to be distilled from the authorities is that categorisation of a particular wilful murder or murder as in the worst, or some other, category of cases of the kind, is a relevant factor in fixing the minimum term, but it will not necessarily be the determining factor.

211 At this point it is logical to deal with ground 2 before dealing with ground 1.

212 Ground 2 asserts a specific error of law. It is effectively a claim that there was insufficient evidence to enable the sentencing Judge to find beyond reasonable doubt that the appellant had treated Coates "in a very brutal way" and that "there was a long history of generally abusive behaviour" on his part towards Coates.

213 Mr and Mrs Leonarder lived next door to Coates' Homeswest unit from mid-1997. They were friendly with him. They had been in his unit about three times. They described it as very clean and tidy. Mrs Leonarder said Coates was intellectually handicapped, very insecure, very shy and rather withdrawn. She described two particular incidents. The first was in November 1997. The appellant and his wife arrived at Coates' unit. After they went inside, she heard them yelling and screaming about how the place was dirty and if he did not keep it clean he would end up in the streets and they would not take him in if that happened. This went on for half an hour or 45 minutes.

214 The Leonarders said the appellant and his wife turned up at Coates' unit again the following evening. They went inside. Again, there was yelling and screaming. That was coming mainly from the appellant, although Mrs Leonarder described his wife as "egging him on". Mrs Leonarder said that interspersed with that she heard at least three "whacking" noises. Mr Leonarder could not say how many he heard, but there were "quite a few". He said this was the sound of flesh being struck hard. Asked in cross-examination how he knew that, he said he had been a boxer from the age of 13 and knew the sound. The Leonarders were so concerned about this that they called the police. Mr Leonarder also went up the street to fetch a neighbour. As the two of them were just about to enter the premises, the police arrived. The first police officer was Constable Sorrell. He said he arrived at 10.50 pm. He went inside. Two other police cars also arrived. Mrs Leonarder said that she was horrified when she saw Coates - his face was swollen, with black and purple bruises and his eyes were blood red. He still had badly bloodshot eyes and a lot of bruising three days later.

215 Constable Sorrell said that when he arrived he could hear banging and shouting. He spoke to the appellant, who had been drinking and was aggressive. He seemed angry towards Coates. He made the appellant go outside. Coates was crouching, clothed, in the shower. He was shaking. He had two big black eyes. He wanted the constable to go away. He refused to allow the constable to take him for medical treatment, to take photographs or to take a statement. At that stage there was further commotion out the front and Constable Sorrell went outside. It was the appellant again. The constable spoke with him "in no uncertain terms" and told him to leave. The appellant and his wife did so.

216 Constable Sorrell could not obtain a statement from the appellant but was so concerned he drove to the appellant's house to check on the appellant and subsequently made at least six random patrols of Coates' unit during the remainder of his shift and requested further patrols by other officers. He also contacted the Department of Family and Children's Services and the Public Advocate.

217 Mrs Spadafore lived in a house behind that of the appellant and his family. She made a number of observations, including that the appellant used to make Coates stay outside and sweep the backyard all day. She described one incident in which the appellant hit Coates hard across the shoulders with a rake or broom handle. She saw the appellant hit Coates with things maybe on three occasions. She said the appellant used to verbally abuse Coates every day. She said Coates would cower "like a little kid"; he was obviously frightened of the appellant.

218 There was other evidence, which it is not necessary to detail, but which was generally to the effect that the appellant made Coates eat alone, separately from the rest of the family or visitors, and that he had to wash his own plates and eating utensils in the laundry.

219 Having regard to Coates' intellectual disability, and to his extreme dependence and vulnerability, and to the evidence to which I have briefly adverted above (as well as the appellant's own accounts of his anger at Coates on the day he died), I consider it was entirely open to the sentencing Judge to find beyond reasonable doubt that the appellant treated Coates in a very brutal way and that there was a long history of generally abusive behaviour on his part towards Coates.

220 The specific factors identified in the first ground of appeal were all taken into account by the sentencing Judge. He mentioned them. The offence itself was particularly serious. I have already adverted to some aspects of it. It was the killing of a defenceless, vulnerable man with the mental age of a young child, by an offender in whose care he was, but who was prone to verbally and physically ill-treat him.

221 I reject Mr Richter's submission that the concealment of the body and of the fact of death did not exacerbate the seriousness of the offence. In

Buckland v The Queen, unreported; CCA SCt of WA; Library No 980144; 3 April 1998, the applicant had been convicted of wilful murder and sentenced to strict security life imprisonment with a minimum term of 20 years. Amongst other factors, the sentencing Judge regarded the applicant's absence of remorse and his refusal to reveal the whereabouts of the deceased's body and what actually happened, as seriously aggravating the offence. After sentence and before his appeal was heard, the applicant took police to where the body was buried. It was exhumed and a post-mortem revealed, inter alia, evidence that the deceased had been stabbed in the chest near the heart with a knife. Part of the applicant's argument on the appeal was as that issue (and he contended, others) had been resolved, he should be resentenced more favourably. The Court of Criminal Appeal rejected that argument. It was accepted those circumstances went to the seriousness of the offence.

222 Here, although the appellant professed to have remorse, it was well open to his Honour to find (as he did) that there was a complete lack of genuine remorse. That was compounded by the appellant's attempt to cast the blame for the killing on Chapman; his concealment of the body; his refusal to reveal to his wife, Coates' sister and only relative, or anyone else, what had happened, even after the body was found; and his actions attempting not only to protect himself from discovery but also to advance his own financial interests over a period of some three years after the killing.

223 I am unable to accept that the fixing of a period of 13 years to be served before eligibility for parole is outside the scope of a proper exercise of the sentencing discretion. Ground 1 must fail.

225 McLURE JA: The appellant appeals against his conviction for murder and the sentence of life imprisonment with a minimum term of 13 years for that murder. The facts and grounds of appeal are detailed in the judgment of Roberts-Smith JA and not repeated here unless required for an understanding of these reasons. Unlike Roberts-Smith JA, I have concluded that the trial Judge erred in his directions to the jury relating to manslaughter. I propose to focus on the appeal grounds concerning that subject.

226 As I apprehend the submissions made at the hearing, the appellant contended that the trial Judge erred in failing to direct the jury about the common law category of involuntary manslaughter relating to an unlawful and dangerous act. In particular, the appellant contended that as the cause

and mechanism of Mr Coates' death were unknown, the jury should have been left with the possibility that the appellant killed the deceased, without intending to cause grievous bodily harm, but by an intentional, unlawful and dangerous act carrying with it an appreciable risk of serious injury.

227 The appellant puts his case in two ways. First, he contends as a matter of principle that the Criminal Code (WA) does not provide a definition of manslaughter and the gap is filled by the common law. There are two categories of involuntary manslaughter at common law: manslaughter by an unlawful and dangerous act carrying with it an appreciable risk of serious injury and manslaughter by criminal negligence: Wilson v The Queen [1992] HCA 31; (1992) 174 CLR 313 at 333; R v Lavender [2005] HCA 37; (2005) 222 CLR 67 at 70.

228 The second way in which the appellant put his case was that in the particular circumstances of the case the trial Judge ought to have directed the jury as to the possibility of manslaughter by an unlawful and dangerous act. The failure to do so in the context of the directions given had the result, so it is contended, that the trial Judge effectively withdrew manslaughter from the jury.

229 I start with the proposition that the Criminal Code does not define manslaughter and incorporates the two categories of involuntary manslaughter at common law. The Criminal Code does in fact purport to provide a definition of manslaughter. Section 280 is in the following terms:

"280. 'Manslaughter', definition of

A person who unlawfully kills another under such circumstances as not to constitute wilful murder or murder is guilty of manslaughter."

230 A person is guilty of wilful murder if he unlawfully kills another, intending to cause his death or that of some other person (s 278).

231 A person is guilty of murder if, inter alia, he unlawfully kills another intending to do to the person killed or to some other person some grievous bodily harm (s 279).

232 A common element of the offences of wilful murder, murder and manslaughter is that there be an unlawful killing. That matter is addressed in s 268 of the Criminal Code which provides:

"268. Killing of a human being unlawful

It is unlawful to kill any person unless such killing is authorised or justified or excused by law."

233 A killing is not unlawful if, inter alia, s 23 of the Criminal Code applies. That section relevantly provides:

"23. Accident etc., intention, motive

Subject to the express provisions of this Code relating to negligent acts and omissions, a person is not criminally responsible for an act or omission which occurs independently of the exercise of his will, or for an event which occurs by accident."

234 No issue of negligence arises in this case. However, the appellant contended in the appeal that the trial Judge should have directed the jury as to the possibility of the appellant having killed the deceased as a result of an intentional unlawful act, but in circumstances in which an ordinary person would not foresee a substantial risk to health or life, which would invoke the accident limb of s 23. I agree with Roberts-Smith JA for the reasons he gives that, having regard to the appellant's evidence, accident was not a real issue at trial (see Tully v The Queen [2006] HCA 56; (2006) 81 ALJR 391 at [76] - [78] per Hayne J).

235 Roberts-Smith JA details in his judgment the extensive authorities on the correct approach to the construction of the Criminal Code. It is sufficient for present purposes to refer to the classic statement of Dixon and Evatt JJ in Brennan v The King [1936] HCA 24; (1936) 55 CLR 253 at 263 that:

" ... [the] code [is] intended to replace the common law, and its language should be construed according to its natural meaning and without any presumption that it was intended to do no more than restate the existing law. It is not the proper course to begin by finding how the law stood before the Code, and then to see if the Code will bear an interpretation which will leave the law unaltered."

236 The Criminal Code provides for two categories of manslaughter. The first is where someone causes the death of another as a result of intentional violence and the second is where the death is caused through negligence without any intentional violence. In the case of negligence there must first be a breach of the duties imposed in ss 262 - 267 of the Criminal Code: R v Hodgetts & Jackson [1990] 1 Qd R 456. However, the negligence necessary to establish a breach of the relevant duties must meet the common law standard of criminal negligence: Callaghan v The Queen [1952] HCA 55; (1952) 87 CLR 115. It may be thought to be but a short step to conclude that the intentional violence category of manslaughter under the Criminal Code is confined to the common law category of unlawful and dangerous act. However, the position in this State in relation to death caused by intentional violence is that manslaughter is a residual category which encompasses all unlawful killings (that is, those not authorised, justified or excused by law) unless accompanied by an intention to kill or cause grievous bodily harm: Ward v The Queen [1972] WAR 36. That case concerned death caused by intentional violence. After referring to s 268 of the Criminal Code and to the definitions of wilful murder, murder and manslaughter the Full Court said (at 43):

"In the terms of these sections the elements of the crime of manslaughter are as follows: -

(1) that the accused has caused the death of another;

(2) that he has done so without any intent to kill or do grievous bodily harm or any other circumstance being present which would support a conviction for wilful murder or murder;

(3) that there are present no circumstances authorizing or justifying or excusing the killing in law."

237 The trial Judge in this case directed the jury in accordance with the long-established authority of Ward. R v Lavender is distinguishable in that the relevant New South Wales statute is not a Code and does not exclude the common law (Gleeson CJ, McHugh, Gummow and Hayne JJ at [2], [21]). I see no justification in the language or scheme of the Criminal Code for limiting manslaughter by intentional violence to the common law category of unlawful and dangerous act.

238 However, there is merit in the second way in which the appellant advanced his case. The issues at trial included whether the appellant had caused Mr Coates' death and whether the cause of his death was violence at the hands of the appellant. The trial Judge directed the jury in such a way as to imply that, if they were satisfied the death was caused by a violent act of the accused, the only possible inferences that were open from the use of violence were that the appellant intended to cause Mr Coates' death or at least cause him grievous bodily harm. This is apparent from the following extract (at T 531 - 532):

"So you have to draw an inference about this before you can be satisfied beyond reasonable doubt; that you can [?] into account what I said about inferences and the drawing of them. So if you're satisfied the cause of death was violence at the hands of the accused, it would be open to you - and it's entirely a question for you - to infer from such violence that the accused intended to cause his death or at least grievous bodily harm, and I will come to that in a moment."

239 The trial Judge repeated the substance of this direction (at T 533) as follows:

"So therefore if you are satisfied beyond reasonable doubt, and only you can make this decision - if you are satisfied beyond reasonable doubt that by concealing the body he was concealing the fact that death was as a result of violence, it would be open to you to draw the inference, if you are so satisfied beyond reasonable doubt, that he caused the death and further, he had caused it with an intent to kill or do grievous bodily harm."

240 As the appellant correctly observed, at no time did the trial Judge direct the jury that death caused by a violent act of the appellant was also capable of supporting an inference of manslaughter. It is this omission in the context of the positive statements set out above that creates the misleading impression.

241 The trial Judge's explanation of manslaughter exacerbated the situation. The trial Judge said (at T 534):

"Now, we finally get to this: if then an unlawful killing of the deceased by this accused has been proven beyond a reasonable doubt, the crime can be any one of three things, wilful murder, murder or manslaughter, and this brings me to tell you what they are. You see, it's a three-tiered system of homicide; wilful murder at the top, murder in the middle and manslaughter at the bottom; three levels of homicide.

Let's start at the bottom. It's manslaughter if a person unlawfully kills another without any particular intent. What is the classic example of that? Well, motor vehicle manslaughter deaths are unfortunately a common feature of our life. People get in a motor vehicle; they have had far too much to drink; they drive far too fast; the roads are slippery, and terrible fatal accidents occur and people can be convicted of manslaughter in those circumstances for causing - for the unlawful killing of another human being on the road without any intent. They don't intend to kill people or even intend to do them serious harm; they don't intend to hit anyone. That's a classic example of manslaughter. You see, no intent but unlawful killing."

242 Manslaughter by criminal negligence was not an issue at this trial. The jury were never expressly informed that death by a violent act as exemplified by the common law category of unlawful and dangerous act (which would be included in but not exhaust the scope of manslaughter under the Criminal Code) could also be manslaughter.

243 Although the trial Judge informed the jury on a number of occasions of the statutory definitions of wilful murder, murder and manslaughter and provided those definitions in a document given to the jury, that is insufficient to counteract the repeated suggestion that death caused by a violent act of the appellant was only consistent with wilful murder or murder. Moreover, the trial Judge's directions as to the intent required for wilful murder or murder do not in my respectful opinion alter the impression conveyed by the directions. The effect of the trial Judge's directions as a whole was to effectively rule out manslaughter by an act of violence of the appellant. In the circumstances of this case where the cause and mechanism of death were unknown, that gives rise to a serious miscarriage of justice. Accordingly, I would uphold the appeal against conviction, set aside the conviction and order a retrial.