Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Criminal law - Appeal against conviction - Appellant tried jointly with co-accused charged with being an accessory after the fact - Co-accused relied on defence of duress - Whether and if so in what circumstances a co-accused can adduce evidence of other accused's propensity to commit other offences - Construction of s 8(1)(e)(i) of the Evidence Act 1906 (WA) - Whether failure to order separate trials resulted in a miscarriage of justice - Co-accused failed to satisfy evidentiary burden for defence of duress - Whether trial judge's direction capable of overcoming any prejudice to appellant - Construction and application of s 133(4) and s 133(5) of the Criminal Procedure Act 2004 (WA)

Criminal law - Jurisdiction - Validity of indictment - Whether compliance with cl 2(4) and cl 2(5) of sch 1 div 2 of the Criminal Procedure Act 2004 (WA) essential to the existence of jurisdiction to hear and determine a charge

Crimes Act 1958 (Vic), s 399(e)

Criminal Appeals Act 2004 (WA), s 26, s 26(4), s 30(3)(c), s 30(4)

Criminal Procedure Act 1986 (NSW), s 46, s 130(2)

Criminal Procedure Act 2004 (WA), s 3(1), s 83(2), s 85(2), s 114, s 116, s 126, s 132, s 133, s 133(1), s 133(2), s 133(3), s 133(4), s 133(4)(a), s 133(4)(b), s 133(5), s 133(5)(a), s 133(5)(b), s 133(5)(c), s 133(6), s 142, s 143, s 178, sch 1 div 2 cl 2, cl 7, cl 8

Evidence Act 1906 (WA), s 8(1)(a), s 8(1)(e), s 8(1)(e)(i), s 8(1)(e)(ii), s 8(1)(e)(iii), s 21, s 31A, s 31A(1), s 31A(2)(a), s 31A(2)(b)

Interpretation Act 1984 (WA), s 19

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

Attwood v The Queen [1960] HCA 15; (1960) 102 CLR 353

Belford v The Queen [2011] QCA 43

Braysich v The Queen [2011] HCA 14; (2011) 85 ALJR 593

BRS v The Queen [1997] HCA 47; (1997) 191 CLR 275

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

CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; (1997) 187 CLR 384

Dair v The State of Western Australia [2008] WASCA 72; (2008) 36 WAR 413

Davies & Cody v The Queen [1937] HCA 27; (1937) 57 CLR 170

Demirok v The Queen [1977] HCA 21; (1977) 137 CLR 20

Doja v The Queen [2009] NSWCCA 303

Donaldson v The State of Western Australia [2005] WASCA 196; (2005) 31 WAR 122

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

HML v The Queen [2008] HCA 16; (2008) 235 CLR 334

Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488

Jones v The Director of Public Prosecutions [1962] AC 635

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

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

Leaman v The Queen (1987) 28 A Crim R 104

Lowery v The Queen [1974] AC 85

Markby v The Queen [1978] HCA 29; (1978) 140 CLR 108

Melbourne v The Queen [1999] HCA 32; (1999) 198 CLR 1

MJS v The State of Western Australia [2011] WASCA 112

Newcastle City Council v GIO General Ltd [1997] HCA 53; (1997) 191 CLR 85

Noto v The State of Western Australia [2006] WASCA 278; (2006) 168 A Crim R 457

Perry v The Queen [1982] HCA 75; (1982) 150 CLR 580

Pfennig v The Queen [1995] HCA 7; (1995) 182 CLR 461

Phillips v The Queen [1985] HCA 79; (1985) 159 CLR 45

Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355

R v Beckett [2009] QCA 196

R v Collie [1991] SASC 2996; (1991) 56 SASR 302

R v Corak (1982) 30 SASR 404

R v Couper (1985) 18 A Crim R 1

R v Darby [1982] HCA 32; (1982) 148 CLR 668

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

R v Demirok [1976] VicRp 19; [1976] VR 244

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

R v Glover (1987) 46 SASR 310

R v Hajistassi [2010] SASC 111; (2010) 107 SASR 67

R v Hector [1953] VicLawRp 72; [1953] VLR 543

R v Jackson [1982] VicRp 30; [1982] VR 326

R v Janceski [2005] NSWCCA 281; (2005) 64 NSWLR 10

R v Katipa [1986] 2 NZLR 121

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

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

R v Miller [1952] 2 All ER 667

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

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

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

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

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

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

R v Sarek [1982] VicRp 99; [1982] VR 971

R v Webb (1992) 59 SASR 563

R v Winning [2002] HCA Trans 276

Re Knowles [1984] VicRp 67; [1984] VR 751

RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620

Ryan v The State of Western Australia [2011] WASCA 7

Smith v The State of Western Australia [2010] WASCA 205; (2010) 204 A Crim R 280

Stack v The State of Western Australia [2004] WASCA 300; (2004) 29 WAR 526

Stanoevski v The Queen [2001] HCA 4; (2001) 202 CLR 115

Stubley v Western Australia [2011] HCA 7

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

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

The State of Western Australia v Russell [2009] WASCA 154

TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124

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

Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300

Winning v The Queen [2002] WASCA 44

1 McLURE P: This is an appeal against conviction. The appellant was convicted after trial of the wilful murder of Carli Anne Shaw (the deceased). KLA was tried together with the appellant and convicted of being an accessory after the fact.

2 The indictment relating to the appellant and KLA is dated 20 November 2008 and relevantly states:

(1) On 7 February 2008 at Rivervale Cameron James Russell wilfully murdered Carli Anne Shaw

And that [KLA] on 7 February 2008 at Rivervale, knowing that Cameron James Russell had committed the said offence assisted him in order to enable him to escape punishment.

(2) In the alternative to Count (1), on 7 February 2008 at Rivervale Cameron James Russell murdered Carli Anne Shaw

And that [KLA] on 7 February 2008 at Rivervale, knowing that Cameron James Russell had committed the said offence assisted him in order to enable him to escape punishment.

3 On 11 June 2009, four days prior to the scheduled commencement of the trial, the appellant made an application for separate trials. McKechnie J upheld the application and ordered separate trials. That order was the subject of an appeal. On 25 August 2009 the Court of Appeal allowed the appeal and set aside the order for separate trials: The State of Western Australia v Russell [2009] WASCA 154.

4 The unchallenged evidence at trial established that the deceased died at her home at Armadale Road, Rivervale on 7 February 2008. The appellant and KLA, who were in a relationship, boarded with the deceased. They had a baby who was about 6 months old at the time of the deceased's death. The deceased was a single mother of two children, aged 5 and 2. The deceased's death was caused or contributed to by injuries from a knife or knives. The appellant and the deceased were together in the kitchen of the deceased's home when the injuries were inflicted. Shortly thereafter, KLA assisted the appellant by cleaning up the scene and helping him to place the deceased's body in a doona. She subsequently accompanied the appellant to Stirling Crescent, Hazelmere where the appellant dumped the body. The deceased's body was set alight and burned.

5 In a police interview conducted on 8 February 2008, the appellant initially denied having assaulted or argued with the deceased, claiming that she had left her house and not returned and that he did not know what had happened to her. He later admitted in the interview that he had argued with her, and that he must have stabbed her. He admitted dragging her body into the shower, where he left it for some hours, and that he later disposed of her body.

6 In the first part of a police interview conducted with KLA on 8 February 2008, KLA claimed the deceased had left home and not returned. However, in the second part of the interview she began to tell police about what she had seen and heard in the house at the time the deceased died and thereafter. At this stage the interview was terminated.

7 The appellant and KLA gave evidence in their own defence at trial. In substance, the appellant's evidence was that the deceased had knives in her hands which she was holding vertically; she took half a step towards the appellant and swiped; the appellant stepped back and to the side and gripped the deceased in a bear hug; the deceased kicked her legs in the air and she and the appellant fell to the floor together. When he got up he saw a knife in the deceased's neck. The appellant's case at trial was that he did not cause the deceased's death but, if he did, the death occurred by accident. The trial judge also directed the jury on the defence of provocation.

8 Counsel for KLA outlined her defence in opening. The defence was that the appellant murdered the deceased. Counsel continued (ts 39):

[A] lot of what the State says is not in dispute from [KLA's] point of view and we're going to accept the evidence that the State puts forward on the three areas where the State says [KLA] did something that assisted [the appellant], because she did all of these three things, and this is not in dispute between the State and [KLA]. She did help [the appellant] clean up after what had happened, after the murder. She did help mop up the blood, she did help move [the deceased's] body. We'll say, and it's a question for you, you accept what you find proven by the evidence, but we will say that is what happened. We will accept that [KLA] fobbed off various friends of [the deceased] and relatives and told them lies about what had happened to [the deceased]. People asked after [the deceased] and she lied to them. The State says they were deliberate lies about [the deceased] and we accept that she lied to those people. The final thing the State says in the case against [KLA], she lied to the police. Well, that's absolutely right, she did lie to the police. She did the first video with the police where she lied to them about what had happened ... That's her case, that [the appellant] forced her to do what she did. Now, I said apply your commonsense and you will hear evidence that suggests that [KLA] had every reason to fear [the appellant]. First and foremost, she's just come into the kitchen and there's her flatmate bleeding on the floor, not moving, and [the appellant's] standing over her. That's the first thing that she's faced with. That would, you have thought, given her quite a lot of concern. Secondly, [the appellant] has a history of violence, there will be evidence of that, towards her; that is, towards [KLA], during their relationship and also towards others, and you're going to hear about the reason that his arm's in plaster during the course of this trial. [The appellant] was someone with a temper, he was someone who used a lot of drugs himself, and she had every reason to be afraid of him. So when she was in that position when [the appellant] then made a threat to her, and it's pretty much as clear as this: 'You help me or the same is going to happen to you'.

9 Evidence was adduced at trial of the appellant's prior convictions for violence, the appellant's previous violence towards KLA and of a violent altercation between the appellant and a witness, Daniel Gaunt.

10 The appellant relies on five grounds of appeal. The first two relate to the pleading of the charges in the indictment. It is contended in ground 3 that there was a miscarriage of justice occasioned by the cross-examination of the appellant by counsel for KLA that was in contravention of s 8(1)(e) of the Evidence Act 1906 (WA). By ground 4 the appellant contends the trial judge erred in law in declining to order separate trials and discharge the jury. Alternatively, there was a miscarriage of justice occasioned by the fact that the appellant was tried jointly with KLA (ground 5).

11 It was assumed at all times by all involved that the appellant and KLA had been properly charged as joint offenders in count 1 and, in the alternative, as joint offenders in count 2. The assumption was erroneous, a matter conceded by the State.

12 The appellant submits that he was either not charged in the indictment with any offence at all (ground 1) or, if he was charged, that the indictment was in breach of the Criminal Procedure Act 2004 (WA) (CPA), with the consequence that the indictment and thus the trial was invalid (null and void).

13 The indictment, on its proper construction, purports to charge the appellant with wilful murder and, in the alternative, murder and to charge KLA with being an accessory after the fact to wilful murder and, in the alternative, murder. There is no other reasonable construction of the indictment. That is how the lawyers for the parties and the courts who have considered the indictment have all regarded it. Ground 1 must fail.

14 However, the indictment did not comply with the CPA. Counsel for the appellant conceded, correctly on any view, that the non-compliance did not occasion him any unfairness or prejudice in the conduct of the trial. The appellant claims that conditions precedent to the jurisdiction of the court to proceed with the prosecution of the appellant had not been satisfied. If that is correct there would have been no trial or the trial would be a nullity: Doja v The Queen [2009] NSWCCA 303 [4].

15 Whether or not conditions are essential to the existence of jurisdiction to hear and determine a charge depends upon the proper construction of the CPA. Section 83(2) of the CPA provides:

To commence a prosecution in a superior court against a person for an indictable offence, an indictment that alleges the offence must be lodged with the court.

16 An 'indictment' is defined in s 3(1) to mean a document that contains one or more indictable charges, complies with s 85(2), and is lodged with a superior court (defined as the Supreme Court or the District Court).

17 Section 85(2) of the CPA provides:

An indictment must -

(a) be in writing in a prescribed form;

(b) comply with Schedule 1 Division 2;

(c) be signed by an authorised officer; and

(d) be lodged in the prescribed manner.

(3) A prosecution notice or indictment must contain one charge only, unless clause 7 or another written law permits otherwise.

(4) A charge must allege one offence only, unless clause 8 or another written law permits otherwise.

(5) If a prosecution notice or indictment contains more than one charge, each charge must be in a separate and consecutively numbered paragraph.

19 It was common cause that cl 7 of sch 1 div 2 of the CPA permitted a charge of wilful murder or in the alternative murder against the appellant, together with a charge against KLA of being an accessory after the fact to wilful murder or alternatively murder. However, cl 8 does not permit one charge against both the appellant for wilful murder and KLA for being an accessory after the fact in relation to that offence. The same applies to the alternative charge of murder. There should have been four separate, consecutively numbered charges in the indictment. Thus, the indictment breaches cl 2(4) and (5) of sch 1 div 2 of the CPA.

20 The central issue is the effect and consequence of the defects in the indictment. That depends upon the proper construction of the CPA as a whole. Section 178 deals with defects in 'court documents', defined to include an indictment. Section 178 relevantly provides:

(2) Any objection by an accused to a prosecution notice or indictment on the ground that it is defective must be made before the prosecutor's opening address.

(3) If a court document is defective in substance or form, the court, on an application by a party or on its own initiative -

(a) must order that the document be corrected if the defect is not material to the merits of the case;

(b) may order that the document be corrected in any other case.

(4) ...

(5) This section is in addition to and does not affect the operation of section 132.

21 Section 132 deals with the court's power to amend charges. It relevantly provides:

(1) The powers in this section may be exercised by a court in relation to a charge at any time before or during a trial.

(2) The powers in this section may be exercised by a court on its own initiative or on the application of a prosecutor or an accused, unless the contrary intention appears.

(3) ...

(4) ...

(5) If one charge alleges 2 or more offences and a court is satisfied that the one charge is not permitted by Schedule 1 clause 8, it may amend the prosecution notice or indictment containing the charge so that each of the offences is the subject of a separate charge.

(6) If one charge alleges 2 or more offences and a court is satisfied -

(a) that the one charge is permitted by Schedule 1 clause 8;

(b) that the trial of the accused on the charge would be unfair because it alleges the 2 or more offences;

(c) that it is reasonably practicable for any of those offences to be the subject of a separate charge; and

(d) that the separate charge would be in accordance with Schedule 1,

the court may amend the prosecution notice or indictment containing the charge so as to include one or more separate charges.

(7) ...

(8) ...

(9) ...

(10) A court may refuse to amend a charge, prosecution notice or indictment if it is satisfied -

(a) the amendment is material to the merits of the case;

(b) the amendment would prejudice the accused's defence of the charge, prosecution notice or indictment; and

(c) an adjournment would not overcome the prejudice.

22 The term 'charge' is defined in s 3(1) of the CPA to mean a written allegation in a prosecution notice or indictment that a person has committed an offence. A charge is an essential requirement of a criminal prosecution. An accused is required to plead to a charge (s 126, s 142) and a verdict of the jury must relate to the charge (s 114, s 116).

23 In analysing the issues it is necessary to distinguish between a precondition to the existence of a power and a condition regulating the exercise of a power. The former is an essential preliminary or condition precedent to the exercise of the jurisdiction, authority or power to act (in this case, to hear and determine the prosecution). The failure to comply with a precondition to the existence of a power will invalidate an act done in purported exercise of that power (that is, the trial will be a nullity).

24 The failure to comply with a precondition to the existence of a power always results in invalidity. On the other hand, a failure to comply with a statutory requirement that is not a precondition to the existence of a power may (in the absence of any statutory provision to the contrary), but not must, result in invalidity. The correct approach to these questions is identified by the High Court in Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355. The majority said:

An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition ...

Traditionally, the courts have distinguished between acts done in breach of an essential preliminary to the exercise of a statutory power or authority and acts done in breach of a procedural condition for the exercise of a statutory power or authority. Cases falling within the first category are regarded as going to the jurisdiction of the person ... exercising the power or authority. Compliance with the condition is regarded as mandatory, and failure to comply with the condition will result in the invalidity of an act done in breach of the condition. Cases falling within the second category are traditionally classified as directory rather than mandatory [91] - [92].

25 The majority criticised the distinction between directory and mandatory requirements which they said deflected attention from the real issue which is whether an act done in breach of the legislative provision is invalid. They continued:

A better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid ... In determining the question of purpose, regard must be had to 'the language of the relevant provision and the scope and object of the whole statute' [93].

26 The first issue is whether a relevant function of an indictment is to invest the relevant court (in this case the Supreme Court) with jurisdiction to hear and determine the prosecution. If that is so, only a valid indictment can enliven the jurisdiction. Whether or not an indictment is necessary to confer jurisdiction and whether or not compliance with a statutory requirement is essential to the validity of an indictment are questions of statutory construction.

27 It was an unstated assumption of both parties that a valid indictment is an essential preliminary to the exercise of jurisdiction to hear and determine a prosecution. That is the unequivocally clear consequence of the text of the Criminal Procedure Act 1986 (NSW) considered in Doja and R v Janceski [2005] NSWCCA 281; (2005) 64 NSWLR 10 (see s 46 and s 130(2)). Such clarity is not evident in the provisions of the CPA. However, as this issue was not specifically canvassed in the submissions of the parties, it is appropriate to proceed on the basis that the unstated assumption is correct.

28 The focus of attention in the appeal was on whether the failure to comply with cl 2(4) and (5) of sch 1 div 2 of the CPA invalidated the indictment. In my view, s 132 and s 178 demonstrate a clear and unequivocal statutory intention that the breaches in this case do not invalidate the indictment. The power of the court under s 132 and s 178 can only be enlivened in the event it is properly seized of jurisdiction to hear and determine the prosecution. An invalid indictment could not be the subject of amendment. Yet s 132 expressly contemplates an amendment to an indictment in the precise situation that eventuated in this case. That is consistent with s 178, which is concerned with defects of both substance and form.

29 I would dismiss grounds 1 and 2. In order to deal with the remaining grounds it is necessary to detail aspects of the evidence.

30 The deceased's body was discovered before it had been completely consumed by the fire. The hands, feet and left forearm had separated from the body, a common finding when a body is burnt. The forensic pathologist, Dr J McCreath, located two stab wounds capable of causing death. One was to the neck which resulted in the tip of the blade of the knife being embedded in the deceased's jaw bone, which was also fractured. The wound track was at least 7 cm long. It would take a significant degree of force to pierce the jaw bone. There was also a deep stab wound (9 cm) to the right lung. Other wounds included a 1 cm cut in the deceased's left eyelid, bruising to the front and side of the brain and an impact to the back of her head. Although there were two separate potentially fatal stab wounds, only one of the knives given to Mr Perich had blood on it.

31 An edited version of the appellant's interview with police was adduced in evidence by the prosecution. The appellant was wearing a cast on his hand. He explained that he broke his finger as a result of 'knocking out' Daniel Gaunt the week before (ts 3 - 4, 17, 30 and 46). He also admitted to using drugs, in particular, taking speed 'but only on the weekends' and otherwise using 'dope' (cannabis) (ts 31).

32 In his police interview the appellant described the relevant events on 7 February 2008 which included the following. The deceased was a frequent and heavy user of prohibited drugs (including heroin) and prescription drugs. On the day in question, the deceased was angry with the appellant because his family had used two of her potatoes for their meal. He said she just 'skitsed out' and started throwing things at him such as cups and plates (ts 51 - 52). He had started to walk off to his room but stopped when she started to throw things. He continued:

Oh, she had - she had picked up a couple of knives when I started walkin' into the kitchen.

Q. Mm hm.

A. And then I don't remember. I had knives in my hand like - her knives that she had, I had in my hands afterwards.

Q. Mm hm

A. And that was that. And I was freakin'. I didn't know what to do then.

...

Q. Well you mentioned knives - tell us about---

A. I don't know what happened, man, she was just - I had 'em and she was on the ground and that was it. The last thing I remember she had 'em and we were standin' face to face and then I come too with kids lookin' at me. And that was that. She was - I dunno, gone.

...

Q. Cameron, did you stab her with the knives?

A: I think so. I think so, I don't remember. All I know is that she had the knives and then I had the knives and they were covered in blood and that was it. That's all I remember. I don't remember punchin' her, I don't remember doin' anything, just coming too with her on the ground and the knives in my hand and it had all the blood and everything all over her.

Q. Where did that happen in the house?

A. In the kitchen and the laundry.

...

Q. ... When she had the knives what did she say or did she say anything?

A. She was just (indistinct) a whole heap of shit, man. I don't remember what. I was already fuckin' pretty much zoned out by then and then ---

Q. When you say zoned out, mate - sorry,---

A. When - my eyes just go black and I don't remember fuck all, hey. Just - and pull any weapons - any sort of shit like that on me it's bound to happen. I snap.

Q. You got a bit of an - an anger problem?

A. Not really just in situations like that. It doesn't happen very, very often at all.

Q. Mm hm.

A. But when it does happen fuck, man, I hate it (ts 53 - 54).

33 The appellant was again asked about what happened as follows (ts 74):

Q. Um, when you went, um, blank---

A. Yep.

Q. ---how long to do you reckon that lasted for?

A. A couple of minutes maybe at the most.

Q. Do you have any injuries on you?

A. Not that I've noticed, no.

Q. Nah, nothing like, um, ---

A. Cuts or anything, nah.

Q. Nah.

A. (indistinct) I think I had this maybe - I dunno. I don't - didn't get nothin'. I fight cunts with knives all the time so it's not as if it's hard or anything like that. Just they make me snap and pull weapons and shit out.

34 With KLA's assistance, the appellant placed the deceased's body in a doona cover, wrapped it in plastic and placed it in the boot of KLA's car. With KLA and the children in the car, the appellant drove to Stirling Crescent, Hazelmere. The appellant got out of the car and removed the body from the boot. After difficulty in restarting the vehicle, the appellant drove to the house shared by Stephany Posavac, Daniel Gaunt, Aaron Perich and others. He dropped KLA and the children at Ms Posavac's house and left in the vehicle to attempt to locate Ms Posavac and Mr Perich who were still out looking for them. The appellant was unable to locate them before the car again broke down. The appellant walked back to the house.

35 The appellant gave Mr Perich a bag containing knives from the deceased's kitchen and asked him to hold on to them. Mr Perich put the bag behind his couch. Later, the appellant and Mr Perich returned in Mr Gaunt's vehicle to the site where the deceased's body had been dumped by the appellant. According to the appellant, it was Mr Perich's idea to burn the body and Mr Perich was involved in obtaining and adding fuel (petrol and wood) to the fire (ts 64).

36 A police officer, Mr JL Marsh, was cross-examined by counsel for KLA about the appellant's record of prior convictions for assault. The trial judge ruled that it was admissible propensity evidence, relying on the decision in Winning v The Queen [2002] WASCA 44. The evidence is as follows:

On the first page there's an entry, 'Busselton Magistrates Court, 3 April 2007.' Do you see that there---Yes, I do.

And that indicates that Mr Russell was convicted of a common assault offence. Is that right---That's correct.

And he was then placed on a suspended imprisonment order, six months' imprisonment - six months and one day imprisonment suspended for 12 months. Is that right---Yes, that's correct.

All right. On the next page, Fremantle Magistrates Court, in the middle of the page, 13 October 2005---Yes.

Can you see that there---Yes, I can.

Mr Russell was convicted of assaulting a public officer and he was fined $200. Is that correct---Yes, that's correct.

All right. Further down, at the bottom of that page, Busselton Court of Petty Sessions, 13 January 2004, Mr Russell was convicted of assault occasioning bodily harm. Is that right---Yes, that's correct.

And he was sentenced to nine months imprisonment, cumulative. Is that right---Yes.

It says, 'Nine months im cum,' but that means imprisonment cumulative, is that correct---Yes, you're correct.

And over onto the next page, Bunbury Court of Petty Sessions, 11 October 2002, assault occasioning bodily harm. Then in the count column, can you see the number 2 there---Yes, two counts of assault occasioning bodily harm.

... All right. So he was convicted of two counts of assault occasioning bodily harm and received 12 months' imprisonment concurrent on each charge. Is that correct---Yes, that's correct (ts 186 - 187).

37 A number of prosecution witnesses gave evidence concerning the appellant's assault on Daniel Gaunt including Stephany Posavac, Gaunt himself, Aaron Perich and Sabrina Lenhard.

38 In February 2008, Ms Posavac was renting the property at 11 Wynne Street, Hazelmere. Daniel Gaunt, Aaron Perich, Sabrina Lenhard and two others (Jerome Governor and Graham Gallagher) lived at the same address. Mr Perich and Ms Lenhard were living in a shed at the back of the property. Ms Posavac gave evidence-in-chief without objection as to the circumstances in which the appellant damaged his hand. She said that within the week before 7 February 2008 the appellant broke his hand punching Daniel Gaunt in the head and that as Gaunt fell, unconscious, the appellant kicked Gaunt twice in the head before he hit the ground (ts 245 - 246).

39 On the night of 7 February 2008, Ms Posavac was on the back patio talking to the appellant and KLA. Ms Posavac said the appellant was very very calm. She said:

Cameron asked me if I could pack him a cone [cannabis]. He asked me if Daniel had any cones and I said, 'Maybe. Not too sure'. He then said, 'Well, you might want to go and check and if he doesn't I'll just kill him' (ts 247).

40 Ms Posavac also gave evidence that the appellant had visited her house on the previous day, 6 February 2008. Her evidence-in-chief was as follows:

Tell the jury what you remember about that conversation with Russell---He asked me if [KLA] had spoken to me about them moving in. I told him yes, but I hadn't made a decision. I had a full house with nowhere to put them. So he - he said - well, you know, that their housemate was ripping them off and doing his head in and he was going to have to kill her soon (ts 253).

41 Ms Posavac was cross-examined by the appellant's counsel concerning the incident with Mr Gaunt. Ms Posavac accepted that Mr Gaunt and the appellant 'were both in each other's faces' prior to the appellant hitting Mr Gaunt (ts 265) and that Mr Gaunt had previously struck her including on one occasion with a machete during an argument over drugs.

42 Counsel for KLA also cross-examined Ms Posavac in relation to the appellant's assault on Mr Gaunt (ts 266). Counsel for the appellant objected on the basis that KLA was not present during the assault. The objection was disallowed (ts 266). Ms Posavac accepted that the appellant had given Mr Gaunt a hard punch to the face that knocked him 'basically unconscious' (ts 267). She also said that the appellant 'nearly threw a car battery' on Mr Gaunt's head while he was unconscious (ts 270).

43 She was also cross-examined by counsel for KLA about a conversation with KLA on the night of 7 February 2008 in which KLA said it would be just her moving in because the appellant would probably be going to gaol (ts 271).

44 Daniel Gaunt confirmed that the appellant said that he had to move out of the deceased's house soon because 'she was doing his head in and that he was probably gonna have to kill her or something' (ts 280).

45 Mr Gaunt was questioned by the prosecution about the fact, but not the details, of his altercation with the appellant. However he was cross-examined on that matter by counsel for the appellant and then counsel for KLA. He admitted being violent to Ms Posavac and accepted the possibility that at one stage in the appellant's presence he had threatened to put Ms Posavac in hospital (ts 283). However, he rejected that he had taken a couple of steps towards the appellant and put his face right in the appellant's face prior to being hit by the appellant (ts 285).

46 In cross-examination by counsel for KLA, Mr Gaunt, who had no memory of the assault, said that a couple of days after the incident the appellant had explained to him what he (the appellant) had done, which was punch Mr Gaunt three times in the head and kick him in the head with his steel cap boots a number times. He also told him he was going to kill him with a battery (ts 287).

47 Aaron Perich gave evidence-in-chief for the prosecution to the following effect. On the night of 7 February 2008, the appellant came into his shed and asked Mr Perich to take him to KLA's car which had broken down. Mr Perich got up, grabbed the keys to Mr Gaunt's car and they drove off. The appellant directed Mr Perich to KLA's car which was on Bushmead Road, Hazelmere. The appellant got out of Mr Gaunt's car, collected a petrol tin from KLA's car, returned to Mr Gaunt's car and Mr Perich drove them to Stirling Crescent. The appellant told him to drive towards the end of the road where Mr Perich saw a fire. The appellant got out of the car and Mr Perich watched the appellant pour a can of fuel over the fire. Mr Perich got out of the car, saw what he thought to be a body burning and returned to the car and waited (ts 300).

48 When the appellant came down to his shed he asked Mr Perich how to get rid of blood and Mr Perich told him bleach. The appellant also passed him a canvas shopping bag and asked him to hide it. Mr Perich later found out that there were knives in the bag (ts 302).

49 Counsel for the appellant put to the witness the following matters in cross-examination: (1) Mr Perich drove Mr Gaunt's car to where the deceased's body was still burning; (2) the headlights were shining onto the area of the fire; (3) Mr Perich got out of the vehicle and prodded the burning body with a stick; (4) Mr Perich deliberately spun the back wheels of the car and drove in such a way as to throw gravel and sand onto the area of the body; (5) he then drove the appellant in Mr Gaunt's vehicle back to where the appellant's car was parked and the appellant siphoned more fuel into a can; (6) they then drove back and placed more fuel on the burning body (ts 307); (7) at one stage Mr Perich put fuel on the burning body (ts 307); (8) Mr Perich told the appellant that burning a body would get rid of the bones and everything (ts 307); (9) the following day Mr Perich drove back to Stirling Crescent to the site of the body (ts 308); (10) Mr Perich provided the appellant with a bottle of bleach (ts 309 - 310). Mr Perich denied all but proposition (1).

50 Mr Perich said he did what he was asked by the appellant because he was scared of him (ts 310, 314, 315, 327). Mr Perich was present during most of the incident in which the appellant assaulted Mr Gaunt (ts 304).

51 The appellant's counsel expressly challenged Mr Perich's credibility. The witness was extensively cross-examined on prior inconsistent statements made to police in an interview and in written statements. Indeed he was cross-examined by the appellant's counsel about a statement he made to police that the appellant told him that he had stabbed the deceased in the neck and mentioned something about her eye (ts 333), evidence he had not given in examination-in-chief.

52 Counsel for KLA explored with the witness why he was scared of the appellant. Mr Perich said it was because the appellant 'king hit my housemate Daniel' (ts 336). He also said that the appellant, who was wearing steel capped boots, kicked Mr Gaunt repetitively in the head and at one stage the appellant was holding a battery above his head threatening to drop it on Mr Gaunt (ts 336).

53 I have set out above the appellant's evidence as to the events in the kitchen on 7 February 2008. The substance of his evidence concerning Mr Perich's involvement in disposing of the deceased's body was that he told him he had 'effed' up and got into a fight with his housemate and that she was dead and he needed help (ts 612); Mr Perich took two petrol cans with him and they drove to KLA's car, got a petrol can out of the boot of her car, filled the cans and drove to where the body was (ts 613); Mr Perich got out and was poking the body with a stick and then they both emptied the fuel cans over the body (ts 613); the fuel was lit and when the fire died down he and Mr Perich returned to KLA's car to siphon more petrol which was added to the fire; Mr Perich located some wood which he also added to the fire (ts 614 - 615).

54 The appellant also gave evidence-in-chief that he had hit KLA on two occasions (ts 621). It was put to the appellant in cross-examination by counsel for KLA that he had been violent towards KLA on more than 10 occasions, including throwing things at her and punching her on the arm, and that he was violent to her when he was unable to get drugs (ts 649 - 652). He denied the propositions.

55 In cross-examination by counsel for KLA, the appellant gave evidence that he commenced a sexual relationship with the appellant when she was 15 (ts 644 - 645) and was asked about his drug use (ts 646 - 649). In cross-examination on his convictions by counsel for KLA, the evidence was as follows:

You've got a criminal record for assault, haven't you, Mr Russell---Yes.

And included in those assaults are assaults of other people who you knew. Isn't that correct---Pardon?

Included in those assaults are assaults of other people who you knew---Yeah, I think one of them.

One of them---Yeah, one of them was, yes.

All right. Well, 23 November 2006, you committed an assault on a person called Michael Galloway(?). He was somebody who you knew, wasn't he---Yeah. Yeah.

You rode up to Mr Galloway and accused him of discussing his relationships - meaning yours---My relationships, yes.

With other people---I walked up to him. He was on a pushbike, yes.

Yes. And you started striking him to the head with both your fists---No.

And then used your right knee to strike him to the left side of his chest---No. I pushed him off his bike, threw his bike around and told - took off with his backpack.

Well, he put his hands up, didn't he? And he got bruising to the left side of his face as a result of you punching him---No I didn't - didn't---

... You pleaded guilty to that, didn't you, Mr Russell---Yes, I pled guilty to common assault I think it was.

You got a sentence of six months and one day imprisonment, suspended for 12 months. Is that correct---Yes.

13 October 2005, the police were speaking to you about a matter and you didn't particularly want to be arrested by them, did you---I don't know.

Well, you threw your hand back in a backhanded punch with your left fist at------That was at---

- - - one of the officers, didn't you---That's at - no, they gripped me and pulled me out of the van and I nearly went face first.

Mm---That's all I did. I just shrugged my arm basically.

You pleaded guilty to that, didn't you? Assault public officer---Yeah, it was part of a deal thing. But yes, I did.

Yes. And you got a fine---Yes. A $300 fine I think it was.

13 January 2004 you were dealt with in the Busselton Court for assault occasioning bodily harm and you got sent to gaol. Do you recall that---Yes, I do believe so, yes.

And that was another person you knew, wasn't it---Yeah, that was---

A man called Benjamin Hearn(?)---Yeah, he was having relations with our other mate and I just didn't want to know about it. I asked him to stop and it just - ended up getting hit.

Well, you went up to him while he was sitting in a car. Is that right---I was talking to him, yes, cos we were friends, yes.

And you punched him in the jaw with your right fist while he was sitting in the car---Not immediately, but eventually, yes.

While he presumably couldn't defend himself while he was sitting in a car, could he, Mr Russell---No.

... The force of that punch propelled him - Mr Hearn - into the windscreen of the car and caused a crack in the windscreen. Isn't that right---Yes. I think so, yes.

You hit him pretty hard, didn't you---I think that was more from him moving forward than me hitting him.

So he threw himself into the windscreen, did he---Well, he went forward, yes, in the passenger seat.

Right. And you continued to abuse him and told him that he deserved it. Is that right---I didn't - no, I didn't continue to abuse him. I said, 'You shouldn't be doing this to Nick'.

The same way you think Mr Gaunt deserved it. Is that right---No.

And then he had a friend with him at the time, didn't he---Yeah, driving. I think so, yeah.

What did you say to the friend---I asked him for a smoke.

Didn't you tell him to leave or you'd do the same to him---No I didn't know him.

...

I'll move on, your Honour. But that - you pleaded guilty to that offence. Is that right, Mr Russell---Yes.

And you received nine months' gaol. Is that correct---I don't know. I received gaol, yes.

And then you were dealt with also in the Bunbury Court in October 2002 for two counts of assault occasioning bodily harm. Do you recall that---No - yeah, sort of vague - vaguely. It was a long time ago.

It was. A man who you knew called Paul Reynolds(?). Is that right---I don't know a Paul Reynolds off the top of my head.

All right. You rode up to him from behind without warning, struck him to the back of his head, causing him to fall forward. Recall that---No I don't recall that. I don't remember.

Grabbed him around the neck with both arms and pushed his head into the window of a Bedshed store---No. I don't remember that incident.

Tripped him up. Punched him in the back of the head with a closed fist several times. Do you recall that---No I don't recall that incident.

And then you stood up and kicked him while he was on the ground---No I don't remember that one.

You got 12 months' gaol on each of those two counts, didn't you, Mr Russell---I know I've - I've been to [gaol], yes.

But you got sentenced to gaol for that, didn't you---I don't remember that incident.

...

All right. If you could give that to the usher. I'm going to suggest to you, Mr Russell, that you got 12 months' gaol for each of those two offences. Is that correct---12 months concurrent, I think it said, yes (ts 660 - 663).

56 KLA gave evidence after the appellant. She said the appellant was physically violent to her. On one occasion he punched her on the arm after they had an argument about his infidelity (ts 752). She said there were acts of violence at least once a week after they had moved in with the deceased (in October or November 2007) and that included hitting her (on the arms) throwing things and yelling (ts 754). She also gave evidence of an occasion in December 2007 when the police attended (ts 754 - 755). KLA was present during some of the altercation between the appellant and Daniel Gaunt. In particular, she saw the appellant standing over Mr Gaunt with a battery above his head (ts 756). She said that made her scared of the appellant (ts 757).

57 KLA's evidence as to the events on 7 February 2008 is as follows. She was in the lounge room with the children when she heard the appellant and the deceased fighting about using her potatoes. She said the appellant and the deceased had verbal altercations on a regular basis about money and power bills (ts 759 - 760). When KLA followed the deceased's children into the kitchen, the deceased was lying on the floor and the appellant was standing above her with his back towards KLA. She said to the appellant, 'What have you done?':

And was there any reply---He said that he had been waiting to do that for a long time and he told me to get the kids and take them to the lounge room.

58 She did that. Later the appellant called her back into the kitchen. The deceased was still on the floor and there was a towel over her head. The appellant started dragging the deceased into the bathroom (ts 761). The appellant told KLA to clean the floor. The evidence continued:

And did you end up cleaning the floor---Yes I did.

What did you use to clean the floor---There was a mop and a bucket in the laundry.

And what did you clean off the floor? What was the - what did you do---I cleaned the blood.

Why did you do that---Because he told me to do it, and I didn't know what to do, so I just went with what he said (ts 763).

59 When she was cleaning the floor the appellant called her into the bathroom and told her to get a blanket or something to put the deceased's body in (ts 763). This was after the shower had been left running over the deceased for, she thought, about an hour (ts 764). She got a doona cover and the appellant told her to slide it underneath the deceased while he held up the body by the arm (ts 764). The evidence continued:

Did you do that---Yes.

Why did you do that---Because I was scared.

What were you scared of---Him.

Why---Because I didn't want him to hurt me (ts 765).

60 After the body had been placed in the doona cover, the appellant removed a plastic cover from a mattress and wrapped the deceased's body in the plastic. He also obtained a plastic bag which he placed over the deceased's head. The appellant told KLA to get some tape which she did. She gave it to the appellant and he told KLA she had to wrap it around the plastic bag to tie it up (ts 765). The evidence continued:

Did you do that straight away---No.

Why not---Because I didn't want to touch her.

All right. So after he told you to do it, then you didn't do it straight away. What happened then---He told me to hurry up and do it, or the same thing would happen to me (ts 765).

61 KLA then taped up the plastic bag. On the appellant's instructions KLA also wrapped the tape around the plastic covering the deceased's body (ts 766).

62 After the body had been wrapped the appellant told KLA to finish cleaning the floor which she did (ts 766). When it was dark the appellant reversed KLA's car towards the back fence and told KLA to go outside and make sure no one was walking past (ts 767). She did as she was told. The appellant got the deceased's body and put it in the boot of the car (ts 767). KLA went back inside and the appellant told her to get the kids and that 'we were going'. She sat in the back of the car with the three children (ts 767).

63 They went down a no-through road in Hazelmere when the car broke down. The appellant got out of the car, removed the deceased's body from the boot, returned to the car, got a petrol tin from the front and walked away with it. He returned to get a lighter and something else (ts 769). She could smell petrol and feel flames (ts 769). After about 10 minutes the appellant returned to the car. He told her to ring Ms Posavac because the car would not start. She did so and gave her some directions as to where they were. Before they arrived at the scene the car started and the appellant drove to Ms Posavac's house (ts 769 - 770). Ms Posavac and Mr Perich were not there so the appellant left to look for them (ts 770).

64 At some point Ms Posavac and Mr Perich returned to the house. She did not tell them what had happened (ts 771). Shortly after, the appellant arrived and went to the shed to speak to Mr Perich (ts 771). Mr Perich came and asked Ms Posavac whether they could borrow Mr Gaunt's car which they did. The appellant and Mr Perich were gone for 10 or 15 minutes (ts 772). When they returned Mr Perich gave the appellant some bleach and thereafter the appellant, KLA and the children returned to the deceased's home in Mr Gaunt's car (ts 772). When they got back, the appellant told KLA she had to clean the floor again with the bleach that he had obtained from Mr Perich. She said she did that '[c]os I was still scared' (ts 773).

65 The next morning KLA made a number of attempts to call Mr Perich who was supposed to take the appellant to hospital for scheduled treatment on his injured hand. At first she used her mobile and then the appellant told her to go to the phone box which was about a 15 or 20 minute walk from the deceased's house. She went to the phone box from the deceased's house about three or four times (ts 774). There is no suggestion that the appellant accompanied her.

66 KLA admitted to lying to police in her first interview. Her evidence was that she told them what the appellant told her to say (ts 779).

67 Counsel for KLA sought leave to cross-examine the appellant about his convictions (ts 174). Counsel for the appellant opposed the application on the basis that there was no evidence that KLA was aware of them. The trial judge, relying on Winning, ruled the evidence admissible in the State case against KLA. It can be inferred from the exchange with counsel (ts 178) that the trial judge was, at that stage, of the view that the evidence was admissible to prove the propensity of the appellant as well as KLA's state of mind. His position appears to have altered by the time he came to direct the jury (see below).

68 After counsel for KLA had cross-examined Ms Posavac, the appellant's counsel applied for the discharge of the jury. The basis of the application was that Ms Posavac's evidence concerning the Gaunt incident was so prejudicial as to be incapable of being overcome by any direction (ts 272). The trial judge's ruling was in the following terms:

This is an application by counsel for the accused Russell to separate the trials, bring this trial to an end and to separate them, because of actual prejudice to the accused such that no direction however crafted can overcome it. My opinion is irrelevant because the Court of Appeal judgment reported as The State of Western Australia v Russell [2009] WASCA 154 but currently suppressed till further order due to this trial has clearly held to the contrary of counsel's submission. There is nothing, no new material or sufficiently new material, that has been put forward that would justify my departing from a decision which is binding upon me and so therefore the application fails (ts 276).

69 Counsel for the appellant made a further application for the discharge of the jury following the cross-examination of the appellant concerning his sexual relationship with KLA when she was 15.

70 The trial judge ruled that the subject of the question was irrelevant and involved a breach of the prohibition in s 8(1)(e)(ii) of the Evidence Act. He continued:

In the overall context of this case, while clearly the material is prejudicial, I consider that having regard to all the circumstances of the case and other matters, it is a matter upon which proper directions to the jury should be able to overcome the prejudicial nature of the relevant evidence.

... I say that because the general relationship between the two co-accused is a legitimate matter of exploration, both by the prosecution and particularly by the accused [KLA]. And the jury will necessarily have to consider in relation to both cases against each accused the nature of that relationship, the degree to which people acted, having regard to what the jury may find was the nature of that relationship. Clearly and obviously it was a sexual relationship at some point. And so really the inadmissible material has disclosed as extra material simply the date at which that point had commenced (ts 744 - 745).

71 When the jury returned, the trial judge directed the jury that when the relationship between the appellant and KLA started and their ages was irrelevant and they should put it out of their minds. The trial judge continued:

If you regard the age as inappropriate, you cannot use that in any way to reason that the accused Russell may have a propensity to commit crime of any sort, and in particular, you cannot use it in any way to infer that because this relationship may have started when [KLA] was 15, that it makes the accused Russell any more likely to commit the crimes with which he is charged ... That would be a completely inappropriate and wrong way to use the evidence and I so direct you (ts 747).

The trial judge's directions arising from the joint trial

72 The trial judge gave a very lengthy direction to the jury as to what was admissible against each accused. He said:

Now, I'll return to what I said right at the beginning about separate trials and this is a very, very important - everything I've said is important but this is a very important matter because this is a matter which is going to tax you. You are going to have to ruthlessly put aside some of the evidence you've heard in considering the separate cases. If you don't do that, then a miscarriage of justice is going to occur. Now, although both Mr Russell and [KLA] are before you in the same courtroom and when you retire to consider the evidence, you'll have to read verdicts in respect of each of them, there have, nonetheless, as I've said, been two quite separate and distinct trials in this courtroom over the last couple of weeks; one in respect of Russell, one in respect of [KLA]. When you retire to deliberate, you must consider the case of each accused separately. The State has brought charges against both. Their trials have been heard together because, of course, they arise out of a common background of fact and a lot of the evidence is, indeed, relevant against each of them. However, not all of the evidence that you've heard is admissible in respect of Russell and not all the evidence you've heard is admissible in respect of [KLA] but it is particularly the evidence in respect of Russell that I want to talk to you - I've given you an example of that. You remember when each of the records of interview were tendered, I told you they were admitted in the case against the person who'd made it. They were not evidence against the - in the case of the other person.

... Why? Well, they were made out of court, not under oath, the other person had no opportunity to contradict or say, 'No, that's wrong,' and so they're admitted for what you make of them; Russell's record of interview admitted against him, for whatever you make of it, but you cannot supply a gap, if there is one, in the evidence in [KLA] by resort to that, nor can you do it vice versa. The records of interviews stand alone. They are not the difficulty. You've heard evidence of the details of Russell's record of assaults. Now, they are relevant in the case of [KLA], as I will come to, but they have no relevance in relation to the case of Mr Russell. It may sound surprising but a moment's thought will show you why. They are relevant against - well, not against but in the case of [KLA] because they show the background by which it is submitted on her behalf that she may have been frightened of him. So they can be used by you in her case in that way. But they cannot be used in any way in the case against Russell. If these people were being tried separately, you would not have heard of the evidence of his records of assault and some other evidence that I will refer to. You simply wouldn't have heard about them. As a general rule, that evidence is not adduced before juries. So treat it as if you haven't heard about it. Now, I know that is hard to do. You have heard about it. Maybe you've formed some prejudicial view of him. Well, now that you are really coming to the crunch time - I'll speak more about this shortly in 'prejudice' but now you're coming to the crunch time, put it out of your minds. If you can't put it out of your minds, just be aware whenever you start to think about it, that it is not relation to Russell. Particularly, you may not reason that because he has previous convictions for assault, that in some way he is more likely to have unlawfully killed Ms Shaw. Such reasoning is not only illogical but it's impermissible. The record does not form part of the case against him. He is to be judged solely by the evidence that the State has adduced in his case, not by any prejudice that might arise from evidence that does not relate to his case that on other occasions an in completely different circumstances, he may have been violent towards others.

... That relates to his record but it also relates to something you have heard a lot about and that was the assault on Gaunt a few days before. That has very limited relevance. It has a relevance to the question of the credibility of Perich. Perich's credibility is very much in issue. You're going to have to weigh it up, and the fact that he had witnessed or observed a violent confrontation is relevant to how he may have reacted. What he may have done, how he gives his evidence, are all matters for you to weigh up. It is not, however, relevant to say, 'Well, this shows that the accused was violent shortly before, therefore, he must have been violent on the night.' It simply is inadmissible for that form of reasoning. The State doesn't put it forward that way. The State doesn't say, 'Well, it shows violent tendencies on the part of Mr Russell.'

... The State simply puts it forward as I have explained, as part of the background of the relationship between Russell, Perich and the other witnesses, which of course works both ways. The State uses it to say, 'Well, this is why these witnesses acted this way,' you might more readily believe them. The contrary may be, because they had witnessed this violence, they are more likely to be anti-Mr Russell and more readily be prepared to stitch him up ... But what it does not do, or allow you to do, is to use the evidence of that assault or the evidence of the records in any way to reason that because he has committed these crimes, he therefore must have committed the crime which the State alleges against him, which is an unlawful killing with intent. Now, you'll also recollect that a couple of days ago, I directed you and I do again, but in shorter form because I directed you fully then, the age at which [KLA] and Mr Russell started their relationship is evidence only insofar as it may, from [KLA's] point of view, explain the nature of the relationship as she asserts it to be. It is not evidence - any view that that was an inappropriate age or relationship, has no relevance whatever to the issues in this case. In a sense, what this case is about is what occurred, in the kitchen, on the night. And evidence that can throw light on that in Russell's case is all available for your consideration. Evidence that is admissible in his case and irrelevant to his case and cannot, in any event, throw ... light on that, such as his previous convictions, [KLA's] record of interview, the fight with Gaunt and the relationship with [KLA] are all irrelevant and must be excluded from your consideration when you are considering the case against Russell (ts 912 - 915).

73 After repeating the point that 'the records, the actions against Gaunt [and] any other acts of violence, are simply not relevant and part of the case [against Russell]', the trial judge then dealt with the case against KLA. He said:

When you come to consider the case against her, you can take into account the evidence admissible against her and the other evidence available in her case. The evidence is wider than that for Russell, but there are limits. For instance, anything that was said to another person outside her hearing is not evidence against her. Russell's video record of interview is not evidence against her. The evidence of Russell's record of convictions for assaults, any acts of violence that she witnessed or observed, she relies, on and she's entitled to do so, in explaining why she says she felt scared of him on the night and why she did the things she did. You're entitled, when you're considering the case against her, to take those matters into account. But remember also that each of them have given evidence, and each of them have, at some points, given evidence against, you might consider, the other. The evidence that they give in court is admissible in both cases. And so don't forget, it's not all a one-way street. For example, [KLA] asserts that on one occasion, she was grabbed by the hair violently. Mr Russell denies that.

... It's an issue of fact you may have to resolve as you come to look at the cases. So you are entitled to consider all of the evidence, including the evidence of Russell's background and record. When weighing up whether the State has proved that she acted in order to assist him, or whether there's a reasonable possibility that she acted in order to protect herself. Those are matters for you. I cannot emphasise enough however, the need to build a barbed wire fence down between the two cases in relation to the inadmissible material so far as Russell is concerned, and rigidly put it on the side in relation to the [KLA] case (ts 915 - 916).

74 In order to deal with grounds 3, 4 and 5, it is necessary to address issues of principle relating to the relevance and admissibility of the impugned evidence, for what purpose and in whose case (the State case against the appellant, KLA or both).

75 The categories and sources of the impugned evidence are as follows:

Evidence relating to the appellant's sexual relationship with KLA since she was 15.

Evidence that the appellant possessed and used drugs.

Appellant's video record of interview; evidence-in-chief of Posavac; cross-examination of appellant by KLA's counsel.

Evidence of the appellant's assault of Daniel Gaunt.

Appellant's video record of interview; evidence of Posavac (in-chief and cross-examination); evidence of Gaunt (in-chief and cross-examination); evidence of Perich (in-chief and cross-examination); evidence of Lenhard (cross-examination).

Evidence of the appellant's violent conduct towards KLA.

Evidence of appellant (in-chief and cross-examination); evidence of KLA (in-chief and cross-examination).

Evidence of the appellant's convictions for assault.

Evidence of the details of circumstances of assault convictions.

Evidence that KLA told Posavac that the appellant was probably going to gaol soon.

76 The trial was conducted on the basis of the trial judge's ruling based on Winning that evidence to show that the appellant had committed or been convicted of an offence involving violence was relevant and admissible in the State case against KLA, whether or not KLA was aware of the offences or the convictions. The ruling covered the evidence in categories 3 to 6 inclusive and was made before Mr Marsh was cross-examined as to the appellant's convictions.

77 The question in issue is whether and if so in what circumstances a person charged in the same indictment with another (the co-accused) can adduce evidence of the co-accused's propensity to commit offences or offences of a particular nature. It is a given that the question only arises if the propensity evidence in question satisfies the test of relevance for general admissibility purposes. The real question is whether the common law similar fact evidence test or the test under s 31A of the Evidence Act is applicable to propensity evidence adduced by an accused in his or her own defence in a joint trial with a co-accused.

78 Propensity evidence is ordinarily inadmissible because it is disproportionately prejudicial (that is, its prejudicial effect outweighs its probative value). For a discussion of the common law, see Noto v The State of Western Australia [2006] WASCA 278; (2006) 168 A Crim R 457 [21] - [28]. As to s 31A, see Dair v The State of Western Australia [2008] WASCA 72; Stubley v Western Australia [2011] HCA 7.

79 There is English and Australian authority to the effect that propensity evidence is admissible if it is relevant (logically probative) to the defence of a co-accused, there being no requirement to balance probative value against possible prejudice, and the general fairness discretion does not apply: Lowery v The Queen [1974] AC 85; R v Randall [2003] UKHL 69; [2004] 1 WLR 56; R v Miller [1952] 2 All ER 667; R v Gibb [1983] VicRp 78; [1983] 2 VR 155; Winning.

80 There is a difference of view as to whether propensity evidence admissible in the prosecution case against the accused who adduced it is also admissible in the prosecution case against the other co-accused whose propensity is the subject of the evidence. See JD Heydon, Cross On Evidence (2010) [19155], fn 238. Lord Steyn in Randall (with whom the other Law Lords agreed) said:

For the avoidance of doubt I would further add that in my view where evidence of propensity of a co-accused is relevant to a fact in issue between the Crown and the other accused it is not necessary for a trial judge to direct the jury to ignore that evidence in considering the case against the co-accused. Justice does not require that such a direction be given. Moreover, such a direction would needlessly perplex juries [35].

81 In Randall, the defendant and a co-accused (G) were charged with murder and tried jointly. Each denied the charge and raised cutthroat defences, blaming the other for the death. The defendant had relatively minor convictions unrelated to violence but G had a number of convictions for burglary and had been a party to violence. The trial judge directed the jury that G's bad character was relevant only to his credibility and was irrelevant to the likelihood of his having attacked the deceased. That was held to be a misdirection. The House of Lords concluded that the propensity evidence was relevant to show that the defendant's version of the facts was more probable than that put forward by G and that was so whether or not G had adduced evidence of his good character [29].

82 In Winning, three persons (the appellant, Avis and Harris) were jointly charged with the wilful murder of Harris' de facto, Lister. The four had been drinking at a tavern. Lister became intoxicated and aggressive and was required to leave the premises. Some time later Lister was stabbed to death in the home he shared with Harris. He was stabbed to death by either or both of the appellant and Avis. The appellant and Avis each ran a cutthroat defence. The appellant gave evidence at trial to the effect that he refused to be party to a suggestion by Avis and Harris to do away with Lister, but did agree to 'slap him a few times'. He claimed that Avis went into the living room where Lister was asleep in a chair and the appellant, who also went into the living room, saw Avis stabbing Lister several times. The appellant said that at Avis' insistence he assisted in taking the body out into a forest and burying it and in dumping and setting fire to Lister's car. Avis did not give evidence at trial. However, Avis' video record of interview with police was tendered in evidence. He told police that he went to the toilet whilst the appellant was doing something in the kitchen and, when he returned, he saw Lister in his chair covered in blood. Avis also gave evidence of his good character. However, Avis had convictions for dishonesty offences, three offences involving violence, an offence of causing unlawful damage and other offences of loitering, assault and wilful exposure. The trial judge rejected an application by counsel for the appellant to lead evidence as to Avis' criminal record. The Court of Criminal Appeal held that the evidence was relevant and admissible and should not have been excluded.

83 It was said that Avis' case at trial necessarily involved a significant attack on the character and credit of the appellant. Further, the supposed good character and personality of Avis were put to the jury whilst the appellant was disparaged to a significant degree. Based on the reasoning of the court in Lowery, the court concluded that the evidence was wrongly excluded. Olsson AUJ (with whom Malcolm CJ and Steytler J agreed) said:

[E]vidence as to the character of a co-accused ... will only be admissible, at the instance of another accused, if it can be shown to be relevant to an issue in the case. Here the relevance is obvious. The issue was as to which of two accused stabbed the victim and as to the respective roles of the various accused in the events preceding and leading up to Lister's death. In a situation in which the appellant was being attacked by counsel for Avis and asserted to have been the primary offender, whilst Avis was being put forward as a loving, caring person unlikely to have committed or participated in the act of homicide, it was very relevant for the appellant to be able to demonstrate that Avis' record patently indicated a predisposition towards criminal violence and that, when it came to an assessment of relative credit, he had a record of dishonesty.

With all due respect to the learned trial Judge, it seems to me that he was also led into error by concluding that, in a scenario such as that discussed above, considerations of relative prejudice may properly be taken into account. The very basis on which evidence of the type in question may be led by one accused against another (ie, that it be logically probative) necessarily negates the existence of a general discretion to exclude evidence on the basis that its potential prejudicial effect in relation to an accused person outweighs its probative value ... [C]onsiderations of undue prejudice cannot arise in situations in which one accused seeks to lead evidence against a co-accused which is properly characterised as logically probative [40] - [41].

84 The issues discussed in Randall were left open in Jones v The Queen [2009] HCA 17; (2009) 83 ALJR 671. As the only relevant evidence on the topic was inadmissible hearsay, the majority in Jones noted that the appeal did not provide the occasion to consider the principles discussed in Randall, including that propensity may be relied on irrespective of whether the other accused had put his (good) character in issue [22]. The majority continued:

It is trite to observe that all evidence, including that adduced by an accused in order to raise a doubt as to guilt, must be relevant in the sense that it could rationally affect, directly or indirectly, the assessment of the probability of the existence of a fact in issue in the proceedings [22].

85 In the appeal to this court, there was no challenge to the correctness of the reasoning and outcome in Winning. In the circumstances it is appropriate to proceed on the basis that it was correctly decided. Of course 'relevance' is highly fact specific and it is unsafe to simply assume that the propensity evidence is relevant. The appellant in this case did not give evidence that he was of good character.

86 The reference to 'good character' needs further explanation. Evidence of good character is relevant to both credit and a fact in issue, being the likelihood of a person of good character committing the offence in question: Melbourne v The Queen [1999] HCA 32; (1999) 198 CLR 1. As explained in Noto, there is uncertainty as to whether the common law similar fact exclusionary rule applies when discreditable conduct is otherwise relevant as, for example, to rebut evidence of good character. Evidence of bad character admitted to rebut evidence of good character cannot be used positively for the purpose of propensity reasoning as to guilt. Until the High Court resolves the uncertainty, the weight of authority is that evidence of misconduct is admissible if it is relevant for a purpose unconnected with propensity reasoning: MJS v The State of Western Australia [2011] WASCA 112 [3].

87 I address the relevance and admissibility of each category of impugned evidence in the consideration of ground 5.

88 The appellant contends that the cross-examination of the appellant in categories 1 - 6 contravenes s 8(1)(e) of the Evidence Act.

89 Section 8(1) of the Evidence Act relevantly provides:

(e) a person charged and called as a witness in pursuance of this section shall not be asked, and if asked shall not be required to answer, any question tending to show that he has committed or been convicted of or been charged with any offence other than that wherewith he is then charged, or is of bad character, unless -

(i) the proof that he has committed or been convicted of such other offence is admissible in evidence to show that he is guilty of the offence wherewith he is then charged; or

(ii) he has personally, or by his advocate, asked questions of the witnesses for the prosecution with a view to establish his own good character, or has given evidence of his good character, or the nature or conduct of the defence is such as to involve imputations on the character of the prosecutor or the witnesses for the prosecution or a person who died as a result of the offence wherewith he is then charged; or

(iii) he has given evidence against any other person charged with the same offence;

(f) when paragraph (e)(ii) or (iii) is or becomes applicable to any person charged who gives evidence for the defence, it shall be open to the prosecution, or to any other person charged against whom he has given evidence, to call evidence, that such person is of bad character or has been convicted of or charged with any offence other than that with which he then stands charged, notwithstanding that the case for the prosecution or of such other person charged may already have been closed.

90 As the appellant and KLA were not 'charged with the same offence', s 8(1)(e)(iii) had no application.

91 The appellant contends that he did not conduct his case in such a way as to enliven s 8(1)(e)(ii) of the Evidence Act. The State does not contend to the contrary. However, it is clearly arguable that the nature and conduct of the appellant's defence involved imputations on the character of the prosecution witness Mr Perich. Even so, the court has a discretion to exclude cross-examination when fairness requires: Phillips v The Queen [1985] HCA 79; (1985) 159 CLR 45, 56 - 58. I will assume for present purposes that the exception in s 8(1)(e)(ii) was not enlivened.

92 The appellant also submits that it was never suggested by the prosecution or any other party that proof that the appellant had committed or had been convicted of other offences was admissible to show that he was guilty of the offence of wilful murder or murder so as to enliven the exception in s 8(1)(e)(i). That statement is not entirely accurate (see ground 5).

93 The equivalent of par (i) was considered by the High Court in Attwood v The Queen [1960] HCA 15; (1960) 102 CLR 353 in the course of construing s 399(e) of the Crimes Act 1958 (Vic) which was in relevantly the same terms as s 8(1)(e). The question in issue in Attwood was whether the prohibition against cross-examination in par (e) excludes questions on matters relevant to proof of the crime charged if they also possessed a tendency to show that the accused is of bad character. It was contended that the equivalent of subpar (i) confirmed an intention to prohibit cross-examination that reflected upon the accused's character even if the matters were relevant to proof of the offence with which he was charged.

94 The court said of the equivalent of s 8(1)(e):

In practice the words have always been applied as limiting what may be asked in cross-examination to credit but not as affecting cross-examination to strictly relevant facts and this seems to be in accordance with the natural reading of the provision ...

...

The exclusory words in s 399(e) do not naturally relate to a fact, matter or circumstance which is in itself directly relevant to the proof of the issues although its occurrence or existence incidentally tells against the possession by the accused of a good character or may be the ground of attributing to him a bad character (360 - 361).

95 The court explained why par (i) was not inconsistent with the conclusion that the prohibition in par (e) only applied to cross-examination relevant solely to the credit of the accused. In summary, it is suggested that the draftsman saw proof of the commission of, or conviction for, an offence as relevant to a fact in issue but such evidence is ordinarily excluded at common law as a matter of policy under the similar fact evidence rule. In the absence of subpar (i) it may have been suggested that there was no prohibition on cross-examination of an accused on the commission or conviction of an offence for the purpose of discrediting him if it was relevant to a fact in issue but not admissible for that purpose. The object of par (i) is to permit cross-examination as to credit only in those circumstances where evidence relevant to a fact in issue is, as a matter of policy, admissible.

96 Notwithstanding that par (i) is, in form, an exception to the prohibition in s 8(1)(e), in substance and purpose it is not facilitative but confirmatory of a prohibition. That is, s 8(1)(e) prohibits cross-examination of an accused as to credit in respect of the nominated matters, including cross-examination tending to show that the accused has committed or been convicted of any offence where the matter is relevant to a fact in issue but inadmissible, unless one of the other exceptions apply.

97 If and to the extent that the cross-examination complained of is relevant to a fact in issue in the case against the appellant or KLA and admissible therein, the prohibition in s 8(1)(e) has no application. Any other construction would produce unfairness, particularly in cases where a co-accused is charged with a different offence or relies on duress: see R v Corak (1982) 30 SASR 404; JD Heydon, Cross On Evidence (2010) [23250].

98 That is sufficient to dispose of ground 3. However, for the sake of completeness I deal with the respondent's contention that the prohibition in s 8(1)(e) has no application to the cross-examination in issue because there was no question 'tending to show' any relevant matter. The respondent relies on the decision of the House of Lords in Jones v The Director of Public Prosecutions [1962] AC 635 for the proposition that 'tending to show' means 'make known' or 'reveal' to the jury for the first time. However, the prohibition will be infringed if the cross-examination, as a matter of substance, travels outside the scope of what had previously been revealed: R v Sarek [1982] VicRp 99; [1982] VR 971, 979; R v Couper (1985) 18 A Crim R 1, 3 - 5. This is not a complete answer to this ground of appeal as only the matters the subject of categories 2 and 3 above were canvassed in substance in the evidence adduced by the prosecution.

100 The appellant contends that the trial judge made a wrong decision on a question of law in declining to order, pursuant to s 133(4)(a) of the CPA, that the appellant be tried separately from KLA and that the jury be discharged pursuant to s 116 of the CPA. By his particulars, the appellant contends that the order for separate trials ought to have been made after the evidence in categories 1, 3, 4, 5, 6 and 7 had been admitted at trial. The ground of appeal is not in terms that the trial judge should on his own initiative have exercised the power in s 133(4)(a).

101 As the power to order separate trials is discretionary, the appellant is required to demonstrate a material error of law or fact. The errors relied on by the appellant are first, that the trial judge failed to exercise his discretion at all, alternatively failed to take into account relevant considerations (being the evidence in the abovementioned categories) and secondly, that the refusal to order separate trials was plainly unreasonable or unjust.

102 There are a number of difficulties with this ground of appeal. First, the only applications made by the appellant were to discharge the jury. However, as the grounds of the application were based on prejudice said to flow as a result of the joint trial, I will treat the applications as being in substance under s 133(4) of the CPA.

103 Secondly, the appellant made only two applications, both of which were narrowly confined to specific aspects of the evidence. The first application related to the evidence of Ms Posavac concerning the assault by the appellant on Mr Gaunt. The second application was in relation to the cross-examination of the appellant as to the age of KLA when the sexual relationship commenced.

104 The substance of ground 4 depends upon accepting that the trial judge should have made his determination not only by reference to the specific evidence relied on by the appellant's counsel but all other evidence adduced to the time of the application which was prejudicial to the appellant and only admissible in the State case against KLA. The submission is flawed. Whether or not the trial judge made an express or implied material error of law vitiating the dismissal of the applications is to be determined having regard to the nature and scope of the appellant's applications. There is no challenge in the appeal to the decisions in relation to the specific evidence the subject of the applications. That is likely to be because any error by the trial judge in relation to that evidence would not be material, in the sense that it would alter the outcome of the trial judge's decision. That is a judgment with which I agree.

105 I would dismiss ground 4. That does not occasion any prejudice to the appellant. Even if the trial judge erred, the appellant is required to challenge the conviction by demonstrating that the failure to order separate trials occasioned a miscarriage of justice. That issue arises for determination in ground 5. See also s 26(4) of the Criminal Appeals Act 2004 (WA).

106 The appellant challenges his conviction on the ground that the joinder of his trial with that of KLA occasioned a miscarriage of justice. The issue is whether, notwithstanding the directions given by the trial judge, a miscarriage of justice was occasioned by the fact that the appellant was not tried separately from KLA.

107 There can only be a miscarriage of justice if (1) the evidence in issue was not admissible in the case against the appellant and (2) any prejudice from evidence admitted and admissible only in KLA's case was not sufficiently negatived by the trial judge's directions.

108 The appellant does not contend that all of the evidence in the categories to which objection is taken was inadmissible in the appellant's trial. However, he does not condescend to particulars of the evidence accepted to be admissible in his case. That task is largely left to this court. I propose to deal with the categories of evidence separately.

109 Evidence relating to the appellant's assault of Mr Gaunt was adduced in evidence by the State without objection. It was canvassed by the appellant in his record of interview (ts 3 - 4, 15, 17 and 30). The record of interview was edited by consent and played to the jury without objection. Moreover, the State witnesses Posavac and Perich gave evidence-in-chief on that issue without objection.

110 The issues for determination are whether the evidence was relevant and admissible in the appellant's trial and, if so, for what purposes. I confirm that I am proceeding on the basis that evidence of misconduct is admissible if it is relevant for a purpose unconnected with propensity reasoning (MJS v The State of Western Australia) and/or if it is relevant and admissible propensity evidence at common law or under s 31A. The evidence in question was relevant and admissible for a number of purposes. First, it was the explanation given by the appellant for the injury to his hand which is evident from the video record of interview. Secondly, it was relevant background to the events leading up to and after the death of the deceased. Thirdly, it was relevant to Mr Perich's defence of the appellant's attack on him at trial and to explain why Mr Perich cooperated with the appellant in the disposal of the body of the deceased. Fourthly, and most importantly, it was relevant to the probabilities of the different versions of the events in the kitchen when the deceased suffered the wounds from which she died. The version given by the appellant in the record of interview is vastly different from the version he gave at trial. The only real issue in the appellant's case at trial was whether the appellant stabbed the deceased as he thought he did in his record of interview or whether the deceased caused herself and the appellant to fall and in the process impale herself on the knife or knives she was holding.

111 There was other evidence in the appellant's record of interview which provided support for his assessment that he had stabbed the deceased. That evidence was to the effect that on occasions he had anger management problems that caused him to 'zone out' and that especially happened when people pulled weapons, which just makes him 'snap' (ts 54, 74). The appellant is there relying on his propensity to react in a violent and on occasions uncontrolled way towards others. The evidence relating to his attack on Mr Gaunt confirms the appellant's own assessment of his propensity to react violently and his problems with anger-related lack of self-control. The State is, of course, entitled to prove facts so as to show the likely accuracy of the content of the appellant's interview with police: Gibb (164).

112 In summary, the evidence relating to the appellant's attack on Mr Gaunt is relevant to and highly probative of the question whether the appellant caused the deceased's death by stabbing her or whether she died in the course of a fall caused by the deceased. The probative strength of the evidence derives from the fact that the issues were so narrowly confined by the other evidence at trial, particularly the appellant's own evidence. As a result, the evidence is admissible propensity evidence at common law: BRS v The Queen [1997] HCA 47; (1997) 191 CLR 275, 298 - 299; HML v The Queen [2008] HCA 16; (2008) 235 CLR 334; Noto. Further, the evidence would and should have been admitted in the State case against the appellant under s 31A of the Evidence Act.

113 It is the case that at no time has the State sought to rely on this or any of the other categories of evidence as admissible propensity evidence. However, that does not bind this court: Noto [10] - [19]. The issue of the admissibility of this and the other evidence in the State case against the appellant was raised with counsel for the appellant at the hearing of the appeal.

The facts and circumstances of the appellant's assault convictions

114 As already noted, it is clearly arguable that the nature and conduct of the appellant's defence involved imputations on the character of the prosecution witness Mr Perich for the purposes of s 8(1)(e)(ii) of the Evidence Act. Unless the discretion to exclude for unfairness required it, that would entitle the State to cross-examine the appellant on his prior convictions for the purpose of attacking his credit, not as evidence going directly to a fact in issue.

115 However, as explained above, the appellant's propensity to react or respond with violence was already in issue at trial before the evidence relating to his convictions was adduced. It was in issue as a result of the appellant's evidence in the record of interview tendered in the State case. That being so, the fact and circumstances of the appellant's convictions for assault are relevant and admissible in the appellant's trial on that issue.

116 In view of my conclusion on this subject, it necessarily follows that this evidence was also admissible propensity evidence in the State case against KLA. However, I will deal with the remaining issues on the assumption that, contrary to my view, the evidence was inadmissible in the State case against the appellant. It was accepted by the appellant and the State that the evidence was relevant to a fact in issue in the State case against KLA precisely because of its propensity nature. The relevance of the appellant's propensity for violent behaviour in the State case against KLA arises from her defence of duress which depended in part on an admission to her by the appellant that he had intentionally inflicted the injuries on the deceased. In particular, the basis for the claim of duress was the threat that he would do to KLA what he had done to the deceased. This was in the context of an earlier statement by the appellant to KLA that was capable of constituting an admission that he had intentionally killed the deceased.

117 The question then is whether the evidence of the appellant's convictions was admissible in the State case against KLA even if it was not admissible in the State case against the appellant at common law or under s 31A of the Evidence Act. Unlike the situation in Winning, this case did not involve a cutthroat defence at trial in which one or other of the defendants, or both, must have committed the relevant offence. Moreover, unlike the relevant co-accused in Winning, the appellant in this case did not put his good character in issue. However, based on the reasoning of the House of Lords in Randall, the principle in Lowery applies whether or not the co-accused had adduced evidence of his good character. That would appear to be correct because evidence of bad character is only admissible to rebut evidence of good character and cannot be used as propensity evidence relevant to the likelihood of the guilt of the co-accused.

118 The next issue is whether to follow the view of Lord Steyn in Randall that it is not necessary for a trial judge to direct the jury to ignore the propensity evidence in considering the case against the co-accused. The English Court of Appeal is split on the meaning and effect of Lord Steyn's statement in [35] in Randall (see R v Robinson [2002] EWCA Crim 747; [2006] 1 Cr App R 32). I do not intend to venture into that conundrum. I will proceed on the basis most favourable to the appellant.

119 Finally, the appellant contends that the evidence of duress in the State case against KLA ought not to have been put to the jury because KLA had not discharged the evidentiary burden on that issue. In this situation, where the legal burden is on the State and the evidential burden on KLA, the test is whether there is evidence which, taken at its highest in favour of KLA, could lead a reasonable jury, properly instructed, to have a reasonable doubt that each of the elements of the defence had been negatived: Braysich v The Queen [2011] HCA 14; (2011) 85 ALJR 593 [36].

120 In my view, the appellant's submission that KLA did not discharge the evidentiary burden on duress is correct. The elements of the defence of duress are discussed in Smith v The State of Western Australia [2010] WASCA 205. A review of KLA's evidence discloses that the evidence of duress upon which she relied could not, at its highest, apply to all of the acts relied on by the State to establish the offence of assisting the appellant in order to enable him to escape punishment. In particular, not all the acts constituting the assistance can, as a matter of law, be said to be reasonably necessary in order to resist the threat of violence. The lies to police are the most obvious example.

121 This failure to discharge the evidentiary burden on duress would be irrelevant if, as I have concluded, the evidence was admissible in the State case against the appellant. Moreover, if the directions given by the trial judge are effective to negative any prejudice from evidence solely admissible in the State case against KLA, there would be no miscarriage of justice even though the duress defence failed at the first hurdle.

122 Evidence was adduced by the State in its case that the appellant possessed and used drugs. The evidence is in the appellant's video record of interview and the evidence-in-chief of Ms Posavac. No objection was taken to the admission of that evidence. The evidence is relevant to the background in general and Ms Posavac's evidence is relevant as part of the res gestae. The appellant (and some of his friends and acquaintances) inhabited a world where violence and drug taking occurred. It would be wrong to distort the background against which the conduct of the appellant came to be judged. The evidence adduced in cross-examination of the appellant on behalf of KLA is in the same category.

123 If the evidence in categories 3 and 5 is admissible propensity evidence, the evidence relating to the appellant's violence against KLA would also be admissible for that purpose. Even if that were not the case, any prejudice in relation to these matters would be insignificant in the context of the relevant and admissible evidence against the appellant.

124 Ms Posavac gave evidence that KLA said to her on the evening of the deceased's death that the appellant would be going to gaol. There was no objection to the evidence. Moreover, it is difficult to see the basis on which that evidence was admissible at all, even in the State case against KLA. It has nothing to do with the failure to order separate trials and has no relevant independent prejudicial effect.

125 The directions given by the trial judge both immediately after the evidence was adduced and in the summing up would have left the jury in absolutely no doubt that they could not use this as propensity evidence. Having regard to the nature of the evidence, there was little if any danger of a reasonable jury doing so in any event.

126 Based on my conclusions as to the admissibility of the evidence in question in the State case against the appellant, there is no basis to conclude that the appellant has suffered any miscarriage of justice. Indeed, the appellant was significantly advantaged in being jointly tried with KLA, at least insofar as the trial judge's direction to the jury narrowly confined the purpose for which the evidence was admitted. Accordingly, ground 5 should be dismissed.

127 However, I will consider the claim on the assumption that the evidence in categories 1, 4, 5, 6 and 7 and the cross-examination in category 3 was inadmissible in the State case against the appellant. The real focus of attention is on the fact and circumstances of the appellant's assault convictions and the violence to KLA.

128 The public policy reasons for the statutory framework in the CPA for joinder of trials have been comprehensively canvassed elsewhere: The State of Western Australia v Bowen [2006] WASCA 133; Russell; Webb v The Queen [1994] HCA 30; (1994) 181 CLR 41, 88 - 89. In summary, joinder promotes consistency in decision making, facilitates a single and final inquiry into matters which arise out of, or essentially involve, common issues of fact and promotes the due and expedient administration of criminal justice. The possibility of inconsistent verdicts is not relevant in this case. However, in the assessment of the public interest, it is relevant that the State would be prohibited from calling KLA in its case against the appellant unless she had pleaded guilty to the offence with which she was charged (which depended on proving the appellant's guilt), no evidence was offered against her or a nolle prosequi had been entered in her case: Ryan v The State of Western Australia [2011] WASCA 7 [57].

129 However, the real issue in this appeal is whether any prejudice to the appellant has been neutralised, or sufficiently neutralised, by the trial judge's direction to the jury. Based on the limited information before this court in Russell (the video records of interview of the appellant and KLA and the agreed statement of facts [9]), the court made the obiter observation that a direction to the jury could overcome any potential prejudice to the appellant occasioned by the admission of his prior convictions for violent offences. As is apparent from the reasons, the prior record was the sole basis for the assessment of prejudice. It was not suggested by the parties that there was any other evidence admissible solely in the State case against KLA that may prejudice the appellant. The observation about the appellant's prior record was obiter because the court had concluded that the discretion to order separate trials under s 133(4) had not been enlivened, there being no evidence before the primary judge to establish a foundation for a defence of duress by KLA [49]. There was no indication of the factual basis for any such claim by KLA.

130 It is common in a joint trial that evidence admissible against only one accused is received in evidence. Further, the mere reception of evidence of the bad character of a co-accused, including his prior convictions, does not require separate trials: Russell [60] - [65]; Bowen; Gibb (162 - 166). It was held in Gibb that the joint trial in that case gave rise to a miscarriage of justice where an accomplice gave evidence of a very damaging hearsay statement made to her by co-accused A which was tendered to bolster the credibility of an out of court statement made in a record of interview given by co-accused B about what co-accused A had said to him. The trial judge did not give a direction about the purpose for which the evidence was adduced and the appeal court doubted that any such direction would be effective (165).

131 There is no such complexity in this case. The trial judge had to direct the jury that the out of court statements made by each of the appellant and KLA about the other were not admissible in the other's trial. This is a common direction frequently given and there is no suggestion it stretches the comprehension capacity of the jury. The trial judge also had to give a direction about the purpose for which admissible evidence was adduced (the appellant's assault of Mr Gaunt) and explain (erroneously in my view) that the evidence could not be used for propensity reasoning in the State case against the appellant. Once again this is a common direction frequently given in criminal trials and accepted to be within the comprehension of the jury. It is given when it has become permissible to cross-examine an accused about his prior convictions under s 8(1)(e) of the Evidence Act. We routinely tell juries to use the evidence to assess the accused's credit but not for propensity purposes. Such a direction is not significantly different from the direction given by the trial judge in this case.

132 The trial judge handled the appellant's prior record and violence towards KLA in this way. First he dealt with the evidence admissible in the State case against the appellant. He stated in the clearest of terms that the jury were not permitted to rely on that evidence in the State case against him. In the direction on the State case against KLA, the trial judge passed lightly over all the prejudicial evidence against the appellant admissible in her case. In relation to the appellant's record he said:

The evidence of Russell's record of convictions for assaults, any acts of violence that she witnessed or observed, she relies, on and she's entitled to do so, in explaining why she says she felt scared of him on the night and why she did the things she did. You're entitled, when you're considering the case against her, to take those matters into account. ...

... I cannot emphasise enough however, the need to build a barbed wire fence down between the two cases in relation to the inadmissible material so far as Russell is concerned (ts 915 - 916).

133 He did not characterise the evidence of prior convictions as 'propensity evidence' or otherwise create any confusion in the mind of the jury. He took the same approach to his direction relating to the evidence of the appellant's violence to KLA. I am unable to accept that the direction on these subjects is any more challenging than the other common directions to which I have referred.

134 That being the case it is proper to proceed on the presumption that the jury accept and faithfully apply the judge's direction: Gilbert v The Queen (2000) 201 CLR 414 [13]; Demirok v The Queen [1977] HCA 21; (1977) 137 CLR 20, 22; Bowen [31]; Russell [65]. Having regard to the terms of the direction, there can be no real possibility of unconscious use of the evidence for an improper purpose. If the jury were of the view that the evidence was highly probative, there may be a small risk of the direction being deliberately ignored. However, if it is highly probative, it is also admissible.

135 The appellant has failed to demonstrate that a miscarriage of justice has been occasioned by him being jointly tried with KLA. Ground 5 should be dismissed.

136 If I was persuaded that prejudice to the appellant arising out of a joint trial with KLA was of the magnitude claimed by the appellant and not sufficiently neutralised by the directions given by the trial judge, I would conclude that there had been a significant denial of procedural

fairness such as to prevent reliance on the proviso. In those circumstances, it would not be appropriate to proffer a view on whether the evidence properly adduced at trial proved beyond reasonable doubt the appellant's guilt.

138 BUSS JA: The appellant and his co-accused, KLA, were jointly tried in the Supreme Court before McKechnie J and a jury, between 11 and 26 February 2010, on an indictment which alleged:

(1) On 7 February 2008 at Rivervale [the appellant] wilfully murdered Carli Anne Shaw

And that [KLA] on 7 February 2008 at Rivervale, knowing that [the appellant] had committed the said offence assisted him in order to enable him to escape punishment.

(2) In the alternative to Count (1), on 7 February 2008 at Rivervale [the appellant] murdered Carli Anne Shaw

And that [KLA] on 7 February 2008 at Rivervale, knowing that [the appellant] had committed the said offence assisted him in order to enable him to escape punishment.

139 It will be apparent that the appellant was indicted as a principal offender and KLA as 'an accessory after the fact'.

140 After the joint trial, which occupied 12 sitting days, the jury found the appellant guilty of wilful murder and KLA guilty of having been an accessory after the fact to wilful murder.

141 On 2 March 2010, the trial judge sentenced the appellant to life imprisonment with a minimum term of 18 years before eligibility for parole. His Honour sentenced KLA to 12 months' imprisonment and ordered that the sentence be suspended for a term of 12 months.

142 The appellant appeals to this court against his conviction. The issues raised in the appeal require a careful and detailed examination of the trial record.

143 Counsel who appeared for the appellant in this appeal was not defence counsel at the trial, and he did not appear for the appellant in any of the related proceedings.

144 The State's case at the trial was, in summary, as follows.

145 The appellant, then aged 24, and KLA, then aged 17, were boarding with Ms Shaw, then aged 27, at her home in Rivervale. Ms Shaw was a single mother with two children, aged 5 and 2.

146 The State alleged that, on 7 February 2008, the appellant wilfully murdered Ms Shaw at her home. It maintained that the appellant significantly or substantially caused or contributed to her death by stabbing her with a knife or knives. Later, the appellant dumped her body in Hazelmere. He set the body alight and it was burned.

147 On 8 February 2008, commencing at 8.00 pm, the appellant participated in a video-recorded interview with police. Initially, the appellant denied having assaulted or argued with Ms Shaw. He claimed that she had left home and not returned, and he did not know what had become of her. Later in the interview, the appellant admitted that he had argued with Ms Shaw and that he must have stabbed her with a knife or knives. He also admitted that he had dragged her body into a shower, where he left her for three or four hours, and that he later disposed of her body. The appellant said in the interview that he had sought the assistance of an acquaintance, Aaron Perich, and that Mr Perich had set Ms Shaw's body on fire.

148 Mr Perich, who was called as a witness by the State, denied that he had set the body alight. He contended that he was taken by the appellant to Hazelmere and that, when they arrived, Ms Shaw's body was already alight. He then saw the appellant pour accelerant (petrol) on it.

149 The State alleged that KLA assisted the appellant, after he had killed Ms Shaw, by cleaning the murder scene and helping him place Ms Shaw's body in a doona. After her body was placed in the doona, the appellant wrapped it in plastic and placed a plastic bag over her head. Later, the appellant deposited her body in the boot of KLA's motor vehicle. The appellant, accompanied by KLA, then drove KLA's vehicle to the location in Hazelmere where Ms Shaw's body was dumped and burned. The State alleged that KLA lied to Ms Shaw's de facto partner, friends, associates and police about Ms Shaw's whereabouts and what had happened to her.

150 On 8 February 2008, commencing at 9.55 pm, KLA participated in a video-recorded interview with police. Initially, KLA claimed that Ms Shaw had left home and not returned. Later in the interview, she began to tell the police about what she had seen and heard in Ms Shaw's home at the time Ms Shaw was killed and thereafter. The interview was terminated, however, at the request of her stepfather, who was present at the interview.

The application before the commencement of the trial for an order that the appellant and KLA be tried separately

151 The trial of the appellant and KLA was originally listed to commence on 15 June 2009.

152 On 11 June 2009, counsel for the appellant made an application to the trial judge for separate trials. He informed his Honour that he had received a written note from counsel for KLA to the effect that KLA would be 'running a defence of duress' at the trial. See s 32 of the Criminal Code (WA). At that time, his Honour had already read the prosecution brief. He told counsel that he realised the defence of duress was likely to be a possibility 'from the moment [he] looked at the brief'. His Honour received submissions from counsel for the appellant, counsel for KLA and counsel for the State as to whether the trial should be separated pursuant to s 133(4)(a) of the Criminal Procedure Act 2004 (WA). The focus of the submissions was on whether the likelihood of prejudice to the appellant could be guarded against by a direction to the jury, as contemplated by s 133(5) of that Act.

153 On 11 June 2009, the trial judge ordered that the appellant and KLA be tried separately. His Honour said there was a reasonable probability that KLA would be advancing a defence of duress at the trial and, if she did so, she would be entitled to impugn the appellant's character and adduce evidence of previous acts of violence on his part. According to his Honour:

If she does do so, as I see is a reasonable probability, then she would be entitled to impugn the accused Russell's character and lead evidence of acts of violence on [his] part, either if they are shown in the brief or through evidence of convictions, and he has some for violent offences, or of course through her own evidence, giving evidence to support her evidence, if given, of her apprehension of violence.

This, in my view, would undoubtedly be prejudicial to the accused because it is not evidence that would normally be led in a case of murder if he was standing trial by himself. The question then is, having been satisfied that he is likely to be prejudiced because the jury would hear details of his violent character - when I say will, most probably will hear details of his violent character which would not otherwise be admissible in a trial by himself - the question becomes whether, in the words of the section, it is open to decide that the likelihood of the prejudice can be guarded against by a direction to the jury, and I may so decide irrespective of the nature of the offences charged and even if the evidence on some charges is inadmissible or the evidence against one of the accused is not admissible against the other.

See The State of Western Australia v Russell [2009] WASCA 154 [28] (Russell No 1).

154 His Honour observed that, whatever might be the position with joint trials when persons were charged as principal offenders, the situation was:

[D]ifferent when one person is not accused of the crime but is accused of providing assistance afterwards as an accessory after the fact.

155 His Honour concluded that he was not satisfied that the likelihood of prejudice to the appellant could be adequately guarded against by directions to the jury. He thought there was:

[A] risk of irremediable prejudice which could not be minimised sufficiently by any direction that I could give in the very unusual circumstances of this trial and therefore I will make an order for separate trials.

The State's appeal against the trial judge's order that the appellant and KLA be tried separately

156 The State appealed to this court (McLure, Pullin & Miller JJA), pursuant to s 26 of the Criminal Appeals Act 2004 (WA), against the trial judge's order that the appellant and KLA be tried separately. The appeal was heard on 11 August 2009.

157 On 25 August 2009, the court ordered that the State's appeal be allowed and the order for separate trials be set aside. See Russell No 1. The court's reasons were written by Miller JA. McLure and Pullin JJA concurred.

158 The reasoning of Miller JA (McLure & Pullin JJA agreeing) for allowing the appeal and ordering a joint trial was, relevantly, as follows. There was nothing in the evidence before the trial judge to suggest a proper foundation for the defence of duress [44]. It was speculative to say that on the evidence before the trial judge there was a sufficient foundation for the defence of duress to be raised by KLA [46]. Much more was required in terms of evidence before it could confidently be said that KLA would be advancing this defence [46]. The trial judge's conclusion that KLA had open to her the defence of duress was not based on any facts found or agreed, but was purely hypothetical [48]. The discretion to order separate trials was therefore never enlivened [50].

159 The finding that the trial judge had erred in concluding that the appellant was likely to be prejudiced in a joint trial with KLA was the essential point in this court's decision to allow the appeal and set aside the trial judge's order for separate trials.

160 On the appeal, the State conceded that the appellant had a number of prior convictions for offences 'of a violent nature', namely, convictions for common assault, assaulting a public officer, breach of a violence restraining order and assault occasioning bodily harm [54]. The State also conceded that KLA would be entitled to adduce evidence at the trial of the fact of those convictions [54]. According to Miller JA, the State's concession that KLA would be entitled to adduce this evidence 'may have been too readily made' [55]. His Honour added:

It may be arguable whether the fact of those convictions is admissible, depending upon what evidence is given by [KLA]. It is speculative to embark upon a consideration of what [KLA] may say. One possibility is that she may say that she was aware of [the accused Russell's] violent nature because of his convictions. However, that is a hypothetical consideration (see Bass v Permanent Trustee Company Ltd at [49]). In the absence of evidence (or an agreed statement of facts on the issue), it is not something that can be taken into account [55].

161 Miller JA noted that, because of his finding that the trial judge had erred in concluding that the appellant was likely to be prejudiced in a joint trial with KLA, it was 'strictly unnecessary to deal with the provisions of s 133(5) of the Criminal Procedure Act' [57]. His Honour went on, however, to express his views on the point. First, his Honour said that a direction to the jury could overcome any potential prejudice to the appellant occasioned by the admission into evidence of his prior convictions for violent offences [58]. Secondly, it 'can confidently be said that a jury is capable of performing the intellectual task of complying with a direction that evidence of [the appellant's] prior convictions for offences of violence is not to be used as evidence against him, but only to be used in considering the case against [KLA]' [65]. Thirdly, his Honour said that the trial judge was in error to conclude that a proper direction could not be given to overcome prejudice that would be occasioned to the appellant 'by reason of the admission into evidence of his prior convictions for offences involving violence' [66]. These views were obiter dicta. They were not essential to this court's decision.

162 Miller JA added a postscript to his reasons. His Honour said that, in some cases, it will not be until evidence is adduced at the trial that the question of likely prejudice to one or other accused can be determined. He then elaborated:

This will often be the case where (as in the present case) the evidence to be given by accused persons jointly indicted is unknown. There is no obligation upon an accused person to declare his or her hand. The depositions may suggest the possibility of certain lines of defence, but it will often be hypothetical to consider an application for separate trials until such time as evidence has been given. This necessarily means that sometimes an application will have to be made for a separate trial after the trial has begun. Hopefully, cases of that nature will be rare, but sometimes the interests of justice will necessitate that it be so [77].

163 McLure, Pullin and Miller JJA's decision in the appeal was based on the limited information placed before them by the parties. This information comprised an outline of the essential facts alleged by the State (as set out in pars 3 - 9 of the State's written submissions and agreed upon by the other parties to the appeal) and the transcripts of the video records of interview between police and the appellant and KLA [6] - [9]. The parties do not appear to have referred to the prosecution brief. None of the contents of the brief is set out in Miller JA's reasons. His Honour merely referred to the trial judge's comments about the brief. Miller JA mentioned prosecution briefs generally in the postscript to his reasons but these comments did not concern the specific brief relating to the appellant [76].

Order of addresses and cross-examination by counsel at the trial

164 At the trial, after the prosecutor made his opening address, counsel for the appellant made an opening address pursuant to s 143 of the Criminal Procedure Act and counsel for KLA then made an opening address pursuant to that provision.

165 During the trial, counsel for the appellant cross-examined the State's witnesses before counsel for KLA cross-examined them.

166 The appellant gave sworn evidence at the trial. He was cross-examined, first, by counsel for KLA and then by the prosecutor. Counsel for the appellant did not call any other witnesses.

167 KLA gave sworn evidence at the trial. She was cross-examined, first, by counsel for the appellant and then by the prosecutor. Counsel for KLA did not call any other witnesses.

168 The appellant gave his evidence at the trial before KLA gave her evidence.

169 After the prosecutor made his closing address, he was followed by counsel for the appellant and then by counsel for KLA.

170 The prosecutor's opening address at the trial incorporated, in substance, most of the facts and allegations set out in my overview of the State's case at [145] - [150] above.

171 The prosecutor alleged that the appellant had wilfully murdered Ms Shaw and that KLA had assisted him with the object of enabling him to escape punishment for this crime. According to the prosecutor, when KLA provided this assistance she knew that the appellant had wilfully murdered Ms Shaw.

172 It was significant, so it was alleged, that when the appellant killed Ms Shaw he had a plaster cast on his right hand which completely encased his fingers, although not his thumb. The appellant is right-handed. It was submitted that these facts were significant in evaluating the appellant's intention when he stabbed Ms Shaw.

173 The State's case was that the appellant caused Ms Shaw's death by deliberately stabbing her with the intention of killing her. A forensic examination of Ms Shaw's body revealed, relevantly, a stab wound to the neck with the tip of a knife blade broken off and retained in her left mandible. The track of this wound was from her right to left hand side. The knife appears to have entered Ms Shaw's neck behind her throat. The forensic examination also discovered that Ms Shaw had a stab wound to the chest with an injury to her right lung. It was the State's case that the appellant had stabbed Ms Shaw during an argument between them at her home and that his actions had significantly or substantially caused or contributed to her death.

174 The prosecutor said that on or about 6 February 2008 (that, is about two days before Ms Shaw's death), the appellant had told Stephany Posavac that he had to get out of the house where he was boarding with Ms Shaw because Ms Shaw was 'doing his head in'. The appellant said some negative things about Ms Shaw to Ms Posavac. He also said to Ms Posavac that he was going to kill Ms Shaw soon. At the time, Ms Posavac did not take him seriously.

175 The prosecutor also said that a few days before Ms Shaw's death the appellant had told Daniel Gaunt that he was going to kill Ms Shaw.

176 The State's case was that Mr Perich had lived at a property occupied by Ms Posavac. Mr Perich had known the appellant for a few months. After the appellant had killed Ms Shaw and dumped her body at Hazelmere, he sought Mr Perich's assistance to fix KLA's motor vehicle which had broken down near the place where Ms Shaw's body had been dumped. Mr Perich drove the appellant, as directed by the appellant, to Hazelmere in Mr Gaunt's motor vehicle. As they approached KLA's broken down vehicle, the appellant told Mr Perich to drive further down the road. Mr Perich then saw a fire. He stopped the vehicle he was driving near the fire. According to Mr Perich, the appellant said words to the effect, 'fucked up bad this time'. Mr Perich and the appellant alighted from the car. Mr Perich followed the appellant towards the fire. According to Mr Perich, the appellant said words to the effect, 'I have really hurt someone'. Mr Perich then looked at the fire and saw a body in it. They returned to the broken down vehicle. The appellant managed to start the vehicle. Both of them returned to Ms Posavac's property, where Mr Perich was living. On arrival at the property, the appellant gave Mr Perich a shopping bag and asked him to hide it. Mr Perich obliged. He hid the bag behind a couch. Later, police seized the bag. It contained a number of knives including a silver knife with blood on the blade and the tip broken off. The blood was analysed. It matched Ms Shaw's DNA profile. The knife tip recovered from Ms Shaw's mandible matched the broken tip of the silver knife.

177 The prosecutor referred in some detail to the appellant's video-recorded interview with police. In particular, the prosecutor said:

[The appellant], in his police interview, initially lied, the State alleges ... about when he had last seen [Ms Shaw], and denied that he had argued with her. Later on, however, in the interview, he said that he had argued about housekeeping in the house and that he had confronted her in the kitchen where he claims she threw things at him and then brandished two knives at him as they were standing face to face. He claims in the interview, and you will see this, that he 'zoned out' and that the next thing he remembered was standing with the knives in his hand, and one would conclude - this again is a matter for you - that that must be his left hand, given that his right hand was entirely encased in the cast other than on his thumb, and that she was lying on the floor covered in blood. Again, it will be a matter for you, but you might think that his claim of 'zoning out' at the very time that [it] appears on the evidence that he stabbed her, is a very convenient thing for him to say. Again, it will be a matter for you. He told the police that that was that; she was on the ground, covered in blood and that she was 'gone'. You may well conclude that obviously what he was meaning was that she was dead. He denied that he had an intention to kill her. He says he dragged her body into the shower from the kitchen and turned on the water, claiming that he was hoping she would snap out of it. He said she didn't but he left her for three or four hours with the water running on her body. He made no effort to call for medical help. You may well conclude, and this is entirely a matter for you, of course, after you've heard all of the evidence, that what he was really doing was leaving her body in the shower with the water running until she bled out, and that she was well and truly dead by then (ts 24).

The appellant's case as opened at the trial

178 Counsel for the appellant said in his opening address that Ms Shaw was 'very heavily addicted to drugs' (ts 29). He said she would use intravenous drugs 'just about every day' (ts 29). These drugs included methylamphetamine.

179 According to counsel for the appellant, there was an argument between the appellant and Ms Shaw shortly before she died. The dispute concerned two potatoes, belonging to Ms Shaw, that KLA had taken without permission. There appears to have been a history of disputes between Ms Shaw on the one hand and the appellant and KLA on the other about the ownership and use of food.

180 Counsel for the appellant explained to the jury the appellant's case as to the manner and circumstances in which Ms Shaw died:

Something snapped. [Ms Shaw] went absolutely mad. She seized two kitchen knives, one slightly smaller than the other. For no reason at all and with not much more being said than that, she slashed at [the appellant] with one of the knives. Why would she act that way? Among the evidence that you're going to hear in this trial will be evidence from Professor Joyce who's a toxicologist from the University of Western Australia and he will give evidence to allow you to understand that people who have been using methylamphetamine for a long time can develop psychotic rages ... we're going to suggest it was in a methylamphetamine rage, an irrational, almost delusional rage, that poor [Ms Shaw] took it into her mind to attack [the appellant] with knives. Now, a knife goes into a human body very easily. [The appellant] reacted instinctively. He seized her in a bear hug. He couldn't get hold of the knives but he pinned her arms, sort of from her back to the side. He pinned her arms against her. She was holding the knives vertically in the way that I'm demonstrating now. The shorter of the two knives was in [Ms Shaw's] right hand. This struggle took place about the corner of the kitchen that we can see ... At some stage, we know that [Ms Shaw's] had a sharp impact to the back of her head, a single sharp impact ... During the course of the struggle, for some reason, the parties fell to the floor. [The appellant] has [Ms Shaw] in a bear hug, the two knives are pinned somewhere to her body by him. As she's fallen to the floor, her full weight has pressed on the tip of the silver blade which has entered the top of her neck, approximately in the area that I'm indicating. It sliced through the back of her neck ...

... At the same time - she's of course gone down and rolled - the knife, the longer knife which she's held in her left hand, and again these are pinned by [the appellant] to her body, has caused a puncture wound, we think, to the lower right-hand part of her right lung ... Very soon after she fell to the floor, she was unresponsive (ts 30 - 31).

181 In summary, the appellant's case, as put by his counsel, was this:

(a) there was a reasonable possibility that 'in the excited rage of this altercation' with the appellant, the presence of various drugs in Ms Shaw's body caused her to suffer sudden cardiac arrest, and it was this 'very rare condition' which caused her death rather than the wounds inflicted by the knife or knives (ts 32); and

(b) in any event, whether or not the wounds significantly or substantially caused or contributed to Ms Shaw's death, the wounds occurred 'whilst [the appellant] was attempting to restrain her in self-defence and whilst she was in a drug-induced psychotic rage' (ts 32).

182 Counsel for KLA commenced his opening address with this blunt statement of KLA's case:

[Ms Shaw] didn't, on this particular day, simply die. She didn't have a cardiac arrest, she didn't suffocate. [The appellant] murdered her. It's as straightforward as that from [KLA's] position (ts 38).

183 Counsel noted, as was the fact, that the State accepted that KLA was not in the kitchen when the appellant stabbed Ms Shaw. KLA was elsewhere in the house. She was not involved in Ms Shaw's death.

184 Counsel told the jury that KLA did not dispute the State's allegations that KLA assisted the appellant, in the knowledge that he had wilfully murdered Ms Shaw, by cleaning the murder scene, helping the appellant place Ms Shaw's body in a doona, and telling lies to Ms Shaw's de facto partner, friends, associates and police about Ms Shaw's whereabouts and what had happened to her.

185 KLA's case was that the appellant 'forced her to do what she did' (ts 39). Counsel said that KLA had 'every reason to fear' the appellant (ts 39). He elaborated:

First and foremost, she's just come into the kitchen and there's her flatmate bleeding on the floor, not moving, and [the appellant] standing over her. That's the first thing that she's faced with. That would, you [would] have thought, given her quite a lot of concern. Secondly, [the appellant] has a history of violence, there will be evidence of that, towards her; that is, towards [KLA], during their relationship and also towards others, and you're going to hear about the reason that his arm's in plaster during the course of this trial. [The appellant] was someone with a temper, he was someone who used a lot of drugs himself, and she had every reason to be afraid of him. So when she was in that position when [the appellant] then made a threat to her, and it's pretty much as clear as this: 'You help me or the same is going to happen to you'. That's the situation she's put in ... She's frightened. She's been told that the same could happen to her and she does these things that the State allege and they're awful (ts 39 - 40).

186 Counsel concluded his opening address by asserting that KLA had 'every reason to believe that [the appellant] was capable of attacking her, seriously injuring or killing her, given what she'd just seen' (ts 41).

The appellant's video record of interview with police

187 The State tendered, as part of its case, the appellant's video record of interview with police on 8 February 2008. Some passages from the video record were excised, by agreement between the prosecutor and counsel for the appellant, before it was tendered. There was no objection to the tender.

188 The salient features of the video record of interview, as tendered, include the following:

(a) The appellant explained to the police officers that his right hand and forearm were in a cast because he had broken his finger a week ago 'from hittin' my mate' (interview ts 4). The 'mate' whom the appellant hit was Mr Gaunt.

(b) The following exchange occurred early in the interview after the police had explained why they were questioning the appellant:

Q. ... Now, um, obviously the - the incident that we're referring to, ah, we believe, um, happened last night.

A. Okay.

Q. Ah, yesterday and, um, we believe that, um, [Ms Shaw], ah, whom you know, we believe might be involved.

A. Involved?

Q. Yeah.

A. Well I haven't seen her for fuckin' like a day or something either.

Q. Yeah. Well before we even go there that's - that's what we wanna ask you about. We wanna ask you some questions in regards to, um, - in regards to [Ms Shaw].

A. Yeah, okay.

Q. All right. Cos obviously we have our concerns.

A. Yeah, well so do I.

Q. Um, all right. Ah, just to let you know we - we have found, ah, a deceased body, all right. Um, - - -

A. It's not [Ms Shaw] is it?

Q. Well that's what we're tryin' to find out ... (interview ts 7).

The disingenuous nature of the appellant's answers is obvious.

(c) The appellant asserted, in essence, that Ms Shaw regularly abused prescription and illicit drugs. He referred to her 'smashin' all sorts of shit up her arm' (interview ts 28).

(d) The appellant said that he used cannabis, and that he took 'speed' (that is, methylamphetamine) but only on the weekends (interview ts 31).

(e) The appellant said that he had never struck Ms Shaw. He had, however, had a heated argument with her a couple of times but that was 'over bills and shit' (interview ts 33 - 34).

(f) The appellant, in an apparent reference to his assault on Mr Gaunt about a week previously, said that he had 'knocked him out' (interview ts 46).

(g) Eventually, the appellant gave an account of how Ms Shaw met her death. He mentioned that when he went into the kitchen Ms Shaw threw things at him and she picked up a couple of knives (interview ts 52 - 53). The following exchange then occurred between the appellant and the police:

A. And then I don't remember. I had knives in my hand like - her knives that she had, I had in my hands afterwards.

Q. Mm hm.

A. And that was that. And I was freakin'. I didn't know what to do then.

Q. Mm.

A. So I did what I did. Bein' a stupid cunt.

Q. It's all right, mate, take your time.

A. What do you want to know?

Q. Well you mentioned knives - tell us about - - -

A. I don't know what happened, man, she was just - I had 'em and she was on the ground and that was it. The last thing I remember she had 'em and we were standin' face to face and then I come [to] with her kids lookin' at me. And that was that. She was - I dunno, gone.

Q. Okay, when you say gone - were you - with the - you had knives in your hand did you?

A. Yeah.

Q. Okay. And what did you do with the knives in your hand?

A. I don't know (indistinct) cos they were covered in blood. I don't remember, man.

Q. Do you remember being covered in blood?

A. I wasn't covered in blood.

Q. Who was?

A. Um, she was.

Q. She was.

A. Yes.

Q. [The appellant], did you stab her with the knives?

A. I think so. I think so, I don't remember. All I know is that she had the knives and then I had the knives and they were covered in blood and that was it. That's all I remember. I don't remember punchin' her, I don't remember doin' anything, just coming [to] with her on the ground and the knives in my hand and it had all the blood and everything all over her.

Q. Where did that happen in the house?

A. In the kitchen and the laundry.

Q. It's all right, take your time, Buddy. You say in the kitchen and the laundry.

A. Well the kitchen and the laundry are right there.

Q. Oh, together are they? When she had the knives what did she say or did she say anything?

A. She was just (indistinct) a whole heap of shit, man. I don't remember what. I was already fuckin' pretty much zoned out by then and then - - - (interview ts 53 - 54).

(h) The appellant then explained what he meant by 'zoned out' and the police officers asked him whether he had 'an anger problem':

Q. When you say zoned out, mate - sorry, - - -

A. When - my eyes just go black and I don't remember fuck all, hey. Just - and pull any weapons - any sort of shit like that on me it's bound to happen. I snap.

Q. You got a bit of an - an anger problem?

A. Not really just in situations like that. It doesn't [happen] very, very often at all.

Q. Mm hm.

A. But when it does happen fuck, man, I hate it.

Q. Mm.

A. I fuckin' hate it (interview ts 54).

(i) A little later, the police officers asked the appellant whether he had intended to kill Ms Shaw:

Q. Yeah. At some point did you intend to kill her?

A. Hell, no. Nah, never, ever. Nah. Nah.

Q. What was your intention then?

A. I don't know, man. To ask her what her fuckin' problem is. To stop throwin' shit, I dunno, probably to restrain her, I dunno, to give her a bear hug, not fuckin' do that shit. No way. I didn't wanna do none of that, man.

Q. Mm.

A. Never (interview ts 56 - 57).

(j) The appellant told the police officers that it was Mr Perich's idea to burn Ms Shaw's body (interview ts 64). Mr Perich provided the petrol and he used a lighter to ignite the accelerant. The appellant gave this version of events:

A. I took [Mr Perich] out there, showed him, like what the fuck do I do, you know, you know, I'm losin' the plot and shit - - - -

Q. Mm hm.

A. - - - and like he's like, 'Here you are, we'll go back to your car, take enough fuel and shit and burn it.' And we done that. He done it about twice, man. Went back to my car twice to get fuel to burn her and he chucked some big logs and shit on her and he's like, 'Yeah, man, as long as it gets crankin' you'll be right. You know, oh, whatever, whatever, man. Get in the car to your house and then take me home now I don't wanna know about it' and that was it and then - - -

Q. Whose idea was it to burn the body - [Ms Shaw's] body?

A. [Mr Perich's]. I didn't know what the fuck to do, man. It was mine to dump it, but I didn't even wanna do that. But I didn't know what was gonna happen if we didn't and fuck, yeah, it was just so obvious and [Mr Perich's] like, 'Oh, we'll go and (indistinct) go and have a (indistinct) fire,' he reckons. (indistinct)

Q. Mm. All right. And the fuel you say - the actual can itself, where did that come from?

A. That come from [Mr Perich's] house somewhere, I dunno, where he pulled that from (interview ts 64).

(k) The appellant told the police officers that Mr Perich had the knives in question. Mr Perich had put the knives behind his couch. The knives were in an 'environmentally friendly' shopping bag (interview ts 68 - 69).

(l) The police officers inquired of the appellant whether he had any injuries (for example, cuts). The appellant responded:

A. I dunno. I don't - didn't get nothin'. I fight cunts with knives all the time so it's not as if it's hard or anything like that. Just they make me snap and pull weapons and shit out.

Q. Yeah, you said that before (interview ts 74).

(m) The appellant said that he had used bleach to clean up the kitchen after Ms Shaw had died and he had dumped her body at Hazelmere. He claimed that Mr Perich had told him to 'walk around and pour bleach everywhere' (interview ts 80). Mr Perich had given him the bleach (interview ts 81).

The application by counsel for KLA for leave to adduce evidence of the appellant's criminal record

189 The State called evidence from one of the investigating police officers, Detective Sergeant Jason Marsh. He gave evidence on 12 and 15 February 2010.

190 In the middle of counsel for KLA's cross-examination of Detective Sergeant Marsh, counsel made application to the trial judge for leave to adduce into evidence, through this witness, details of the appellant's criminal record (ts 174).

191 Counsel for the appellant opposed the application. He submitted that the appellant's criminal record was not admissible in relation to KLA's defence of duress unless there was evidence that at the material time KLA was aware of the convictions (ts 177 - 181).

192 The trial judge gave leave in relation to the appellant's convictions for offences involving violence on the basis that these convictions were relevant to KLA's defence of duress and on the basis that counsel for KLA intended, at that stage, to limit this aspect of his cross-examination of Detective Sergeant Marsh to eliciting the place of each conviction, the date of the conviction, the particular offence and the penalty (ts 184 - 185).

193 His Honour did not, in the course of his ruling, state the legal basis for permitting counsel for KLA to put into evidence the fact of the appellant's convictions for the offences in question, but in the course of argument on the application he referred to Winning v The Queen [2002] WASCA 44. His Honour said that, as he understood the decision in Winning, the evidence of these convictions was admissible, whether or not KLA was aware of them at the material time, on the basis that the evidence supported and rendered more credible KLA's case that the appellant wilfully murdered Ms Shaw (ts 181). His Honour also said, in the course of argument on the application, that the evidence in question was only admissible in the State's case against KLA. It was not admissible in the State's case against the appellant (ts 179).

Counsel for KLA's cross-examination of the State's witness, Detective Sergeant Marsh

194 Counsel for KLA proceeded to elicit from Detective Sergeant Marsh details of the appellant's criminal record, as follows:

(a) on 3 April 2007, the appellant was convicted of common assault for which he received a suspended imprisonment order;

(b) on 13 October 2005, he was convicted of assaulting a public officer and was fined;

(c) on 13 January 2004, he was convicted of assault occasioning bodily harm and was sentenced to 9 months' imprisonment; and

(d) on 11 October 2002, he was convicted of two counts of assault occasioning bodily harm for which he received 12 months' imprisonment on each count, to be served concurrently.

The evidence of the State's witness, Ms Posavac

196 Ms Posavac mentioned in her evidence-in-chief that the appellant and KLA visited her home on the evening of 7 February 2008 and, on this occasion, the appellant asked her whether she could 'pack him a cone' of cannabis (ts 247). She gave evidence that at that time there was cannabis in her house. She got some of it, packed it in a bong and gave it to the appellant. He then smoked it (ts 247).

197 Both the prosecutor and counsel for KLA elicited detailed evidence from Ms Posavac as to the circumstances of the appellant's assault on Mr Gaunt. Mr Gaunt was Ms Posavac's boyfriend.

198 The prosecutor's examination-in-chief of Ms Posavac on this issue was as follows:

Do you know how he got that cast---Yes, I do. He broke his hand punching [Mr Gaunt] in the head.

Did you see that---Yes.

Where did that happen---That happened in my front yard.

What happened to [Mr Gaunt] when he was punched in the head---He fell in the garden, unconscious, then [the appellant] kicked him twice in the head before he hit the ground.

What happened to [Mr Gaunt]---He was unconscious.

Where did he end up---In the garden.

After that, where did he end up---Knocked out again when he woke up.

Okay, but - was he taken anywhere after this---We took him to the hospital after the incident (ts 245 - 246).

Ms Posavac told the prosecutor that the appellant's assault on Mr Gaunt occurred 'no more than a week before' 7 February 2008 (ts 246).

199 Counsel for KLA reproduced in his cross-examination of Ms Posavac the prosecutor's examination-in-chief concerning the appellant's assault on Mr Gaunt (ts 265 - 267). However, in addition, he elicited this evidence:

(a) when the appellant assaulted Mr Gaunt (in particular, when he kicked Mr Gaunt a couple of times in the head) he was wearing steel capped boots (ts 267); and

(b) when Mr Gaunt was lying on the ground unconscious, as a result of the assault, the appellant 'nearly threw a car battery on [Mr Gaunt's] head' (ts 270).

200 The relevant evidence about the car battery was this:

And why - why was that---Because he nearly threw a car battery on [Mr Gaunt's] head while he was unconscious. He was going to kill him.

And that was out the front of your house---Yeah.

McKECHNIE J: Just ignore the last answer, ladies and gentlemen. The witness can give evidence as to fact but not her opinion.

FREITAG, MR: Okay. His Honour is absolutely right just in terms of the last part, but in terms of the car battery what did you see about the car battery---It was above his head and it was about to be thrown.

Who was holding the car battery---It was [the appellant].

And [Mr Gaunt] was unconscious on the ground at that stage---Yes (ts 270 - 271).

201 The prosecutor questioned Ms Posavac as to a conversation she had with the appellant on 6 February 2008 in which the appellant said that he was going to have to kill Ms Shaw soon. The relevant evidence reads:

Tell the jury what you remember about that conversation with [the appellant]---He asked me if [KLA] had spoken to me about them moving in. I told him yes, but I hadn't made a decision. I had a full house with nowhere to put them. So he - he said - well, you know, that their housemate was ripping them off and doing his head in and he was going to have to kill her soon.

When he said that to you, what did you do---Didn't take it seriously (ts 253).

202 Counsel for KLA reproduced in his cross-examination of Ms Posavac the prosecutor's examination-in-chief concerning the appellant's statement on 6 February 2008 that he was going to have to kill Ms Shaw soon (ts 268 - 269).

203 Counsel for KLA then elicited from Ms Posavac, by leading questions, evidence to the effect that on the evening of 7 February 2008 the appellant had threatened to kill Mr Gaunt. The relevant evidence was this:

And then he came back and then you had this conversation with him about getting some - or getting a cone from [Mr Gaunt]. Is that right---Yeah.

And he said to you - or he asked you whether [Mr Gaunt] had any cones and you said, 'I'm pretty sure he doesn't,' or, 'I'm pretty sure he hasn't'---Yeah.

And he didn't take that for an answer and he said, 'Well, you might want to go and check, because if he doesn't------'I'll just kill him.'

- - - I'll just kill him'---Yes.

And so you did go and check, didn't you---I knew there was some, yes.

All right, and after you'd gone in you got some cannabis for him and he had a smoke of cannabis out the back---Yeah.

At that stage you were obviously aware of the previous incident involving [the appellant] and [Mr Gaunt]---I saw it, yes. I was aware.

Yes, okay. Was that something that was on your mind at the time---Absolutely (ts 270).

204 Counsel for KLA also elicited from Ms Posavac, by leading questions, evidence that on the evening of 7 February 2008 KLA had told her that the appellant would probably be going to gaol soon (ts 271).

The application by counsel for the appellant to discharge the jury

205 After Ms Posavac had completed her evidence, counsel for the appellant made application to the trial judge for the discharge of the jury. Counsel submitted, in substance, that, as 'matters [had] developed in the defence of [KLA]' in the course of Ms Posavac's evidence, the position of the appellant had been 'hopelessly' prejudiced and he would not receive a fair trial (ts 272).

206 During debate with counsel for the appellant, the trial judge made these points:

(a) the evidence as to the appellant's prior convictions and the evidence of his 'prior violent behaviour' was 'all in the [prosecution] brief that no doubt the Court of Appeal read and had regard to' (ts 273);

(b) most of the prejudicial material elicited from Ms Posavac was in the prosecution brief and 'I can only work on the basis that the Court of Appeal knew that when they made their judgment' (ts 273);

(c) his Honour was not 'unsympathetic' to the appellant's position, but he was 'bound by the decision' of the Court of Appeal (ts 273);

(d) it is 'always going to be hypothetical because the rules provide a mechanism for dealing with separate trial applications before trial' (ts 273); and

(e) his Honour had doubts about his 'ability to be able to craft ... a direction' to ensure that the appellant received a fair trial, 'but the Court of Appeal apparently has no such doubts about my ability' (ts 274).

207 The trial judge dismissed the application to discharge the jury. His Honour gave these reasons:

This is an application by counsel for [the appellant] to separate the trials, bring this trial to an end and to separate them, because of actual prejudice to the accused such that no direction however crafted can overcome it. My opinion is irrelevant because the Court of Appeal judgment reported as The State of Western Australia v Russell (2009) WASCA 154 ... has clearly held to the contrary of counsel's submission. There is nothing, no new material or sufficiently new material, that has been put forward that would justify my departing from a decision which is binding upon me and so therefore the application fails. If it should happen in due course that [the appellant] is convicted of any offence, of course, it would remain open to him as an appeal point that the trial was unfair, but at this stage the facts have not changed in any degree sufficient for me to depart from binding authority (ts 276 - 277).

The evidence of the State's witness, Mr Gaunt

209 The prosecutor elicited brief evidence-in-chief from Mr Gaunt to the effect that:

(a) the appellant had said in his presence, about two days before Ms Shaw died, that Ms Shaw 'was doing his head in and that he was probably gonna have to kill her or something' (ts 280 - 281); and

(b) there was an occasion, about two weeks before Ms Shaw died, when he and the appellant 'were involved in an altercation' (ts 281).

210 Mr Gaunt's evidence about the 'altercation', in answer to questions from the prosecutor, was general and non-specific.

211 However, when counsel for KLA cross-examined Mr Gaunt he elicited, by leading questions, detailed evidence of these matters (ts 286 - 287). This detailed evidence reflected the events described by Ms Posavac concerning the serious assault committed by the appellant upon Mr Gaunt. Counsel also elicited evidence from Mr Gaunt as to statements made by the appellant when the appellant spoke to him 'a day or two' after the altercation:

Now a day or two after that incident, you actually spoke to [the appellant] about what had happened. Is that right---Yep.

Because you had some gaps in your memory because of what had happened to you. Is that correct---Yep.

And he explained what he'd done to you, didn't he---Yep.

Did he say that he punched you three times in the head---Yep.

And he said that he'd kicked you in the head with his steel capped boots a number of times---Yep.

And that he was going to kill you with a battery---Yep.

And at the time when this incident occurred out the front of your house, there was a battery lying around, wasn't there---Yep.

The battery out of [the appellant's] car---Yep (ts 287).

The evidence of the State's witness, Mr Perich

212 Mr Perich gave evidence on 16 and 17 February 2010.

213 Mr Perich said in evidence-in-chief that on the evening of 7 February 2008 he drove the appellant, as directed by the appellant, to Hazelmere in Mr Gaunt's motor vehicle. They found KLA's broken down vehicle. The appellant alighted from Mr Gaunt's vehicle and obtained a petrol tin from KLA's vehicle. Mr Perich then drove the appellant a short distance and stopped. They both alighted from the vehicle. Mr Perich saw a fire. He also saw the appellant take the petrol tin and pour some petrol on the fire. He then saw that a body was in the fire and was burning (ts 297 - 301).

214 Next, Mr Perich gave evidence-in-chief to the effect that he and the appellant returned to the place where Mr Perich was living (being the property occupied by Ms Posavac) and that the appellant gave him a shopping bag and asked him to hide it. Mr Perich said he took the shopping bag and hid it behind a couch (ts 302). Later, he discovered there were knives in the bag (ts 302).

215 Mr Perich gave general, non-specific, evidence-in-chief about the appellant's injured hand, and how he sustained the injury, as follows:

Do you know - had you ever observed whether [the appellant] had a dominant hand. Do you know what I mean by that? Which was his main hand---Right side.

And at this time, on this particular day that you're telling us about, and evening, did you notice anything about his body---No.

Okay. Did you notice that he was wearing a cast---Yeah, he had a cast on. He got that on a week or two beforehand.

Were you present when he sustained the injury that required him to wear a cast---Yes.

And where was that---Out the front of the house in Wynne Street.

And did you observe what happened out the front---Most of it, yes (ts 304).

216 Mr Perich told the prosecutor that he could not recall any conversation between the appellant and him while they were at or in the vicinity of the fire (ts 301).

217 When counsel for KLA cross-examined Mr Perich he elicited, by leading questions, evidence which the prosecutor had been unable to bring out during evidence-in-chief. This evidence included:

(a) that the appellant had told him, during the journey to Hazelmere, 'I have fucked up bad this time' (ts 335);

(b) that the appellant had told him, during the journey to or from, or at, Hazelmere, 'I have really hurt someone' (ts 335);

(c) during this journey, the appellant did not say that Ms Shaw had had a drug overdose or had had a heart attack (ts 335);

(d) a detailed account of the appellant's assault on Mr Gaunt (ts 336 - 337);

(e) after witnessing the appellant's assault on Mr Gaunt, Mr Perich was scared of the appellant (ts 337);

(f) on 8 February 2008, Mr Perich received a threatening text message from the appellant (ts 337);

(g) Mr Perich did not say anything to the appellant, or attempt to try and stop him pouring petrol on the body, at Hazelmere because he was scared of the appellant and did not know what to do (ts 337); and

(h) when Mr Perich was at the police station at Curtin House, he was still frightened of the appellant, even though he knew the appellant was then in custody (ts 338 - 339).

218 Mr Perich's detailed account of the appellant's assault on Mr Gaunt was, in substance, consistent with the evidence given by Ms Posavac on that issue.

The evidence of the State's witness, Ms Lenhard

219 The prosecutor called Sabrina Lenhard. She gave evidence on 17 February 2010. At the material time, Ms Lenhard was Mr Perich's girlfriend. She lived with him at the property occupied by Ms Posavac. The prosecutor did not elicit any evidence from her as to the assault by the appellant on Mr Gaunt or as to whether she was scared of the appellant.

220 These matters were, however, brought out, mainly by leading questions, in counsel for KLA's cross-examination, as follows:

Ms Lenhard, I just want to ask you about your relationship with [the appellant]. Why was it you didn't get along with him---I didn't - I was scared of him and the way he was most of the time. He had called me a lowlife and scum before, and he just mainly scared me, so---

So he'd said some abusive things to you and you were frightened of him, is that right---Yes, he had.

Was one of the reasons why you were frightened of him because of this incident with [Mr Gaunt]---No.

But did you see part of the incident with [Mr Gaunt]---Yes, I was the one that stood in the middle of it and stopped it.

Okay. And how did that incident end? Who was in what position when it finished---[Mr Gaunt] was in the bushes unconscious and [the appellant] was standing over him with a battery, wanting to drop it on his head.

All right, well you can't tell us what he wanted to do, just tell us what position he was in with the battery---Standing over him with the battery.

And where was the battery---Above his head.

And I think you said [Mr Gaunt] was unconscious in - did you say a rosebush---Yep. Garden, yes, rosebush kind of thing.

...

You didn't know [the appellant] and [KLA] particularly well, did you---No.

You hadn't known them for long, for example---No, not long at all.

A matter of a few weeks, would that be about right---Yes (ts 397).

The evidence of the State's witness, Professor David Joyce

221 Professor David Joyce is a medical practitioner. He is also a professor of medicine and pharmacology at the University of Western Australia, the head of the Department of Clinical Pharmacology at Sir Charles Gairdner Hospital and the head of the Laboratories of Clinical Pharmacology and Toxicology at PathWest (ts 422 - 423).

222 The prosecutor called Professor Joyce to give evidence about toxicological findings in relation to different drugs found in Ms Shaw's body during a post-mortem examination (ts 423 - 424). He gave evidence on 18 February 2010.

223 Counsel for the appellant cross-examined Professor Joyce in relation to the impact of methylamphetamine upon users of this illicit drug. Professor Joyce accepted that there was a well documented link between long term methylamphetamine abuse on the one hand and impulsive and violent misbehaviour on the other (ts 451 - 452). Professor Joyce also accepted that there is evidence, in medical literature, of people becoming paranoid after taking the drug. Further, Professor Joyce said that it is recognised in the medical literature that people affected by methylamphetamine may engage in 'precipitous violent action' (ts 452).

The evidence of the State's witness, Dr Judith McCreath

224 Dr Judith McCreath is a forensic pathologist. She performed an autopsy on the body of Ms Shaw.

225 Dr McCreath gave evidence that she found the broken off tip of the blade of a knife in Ms Shaw's left jaw bone. According to Dr McCreath, it takes 'a significant degree of force to put a blade through bone' (ts 509).

226 Dr McCreath also gave evidence about having found stab wounds to Ms Shaw's neck and chest. The track of the wound to her neck was from right to left and upward, and was at least 7 cm in length (ts 497 - 498). The wound to her chest was about 9 cm in depth and extended to the hilum of the right lung (ts 498 - 499).

227 Dr McCreath also found some other injuries to the body of Ms Shaw including a 1 cm cut in her left eyelid, bruising to the front and side of the brain and an impact injury to the back of her head (ts 493 - 496, 500).

228 As I have mentioned, the appellant gave sworn evidence at the trial. He gave his evidence on 19 and 22 February 2010.

229 During his evidence-in-chief, the appellant gave an account of the facts and circumstances attending Ms Shaw's death, and the visit with Mr Perich to the site at Hazelmere where her body had been dumped and burned, which broadly reflected the submissions on these matters made by counsel for the appellant in his opening address (ts 594 - 600, 612 - 616).

230 The appellant admitted having dumped Ms Shaw's body at Hazelmere (ts 609). He said he placed a backpack of hers a few metres away from her body and poured a little fuel on the backpack and the body. He lit the backpack which 'started on fire', but the body 'wouldn't light' (ts 610).

231 The appellant gave evidence about returning later to Hazelmere with Mr Perich. His account of what occurred, including Mr Perich's involvement, broadly reflected the statements the appellant made on these issues in his video record of interview with the police (ts 612 - 616).

232 According to the appellant, he told Mr Perich before they went to the site at Hazelmere where Ms Shaw's body had been dumped and burned, that he had 'effed up and I got into a fight with my house mate and she was dead and I didn't know what to do and I needed his help' (ts 612). The appellant said he asked Mr Perich 'to come with me now' (ts 612).

233 The appellant denied in effect that he had said to Mr Gaunt at any time that he was going to kill Ms Shaw (ts 616).

234 He also denied having said to any of the other witnesses at the trial, either before or after Ms Shaw's death, that he intended to kill anyone (ts 616).

235 He said he lied to the police in the video record of interview because he was scared (ts 616). He said he told the police he thought he might have stabbed Ms Shaw because he 'wasn't sure' and 'couldn't remember' (ts 617).

236 The appellant provided this explanation of other statements he had made in the video record of interview with the police:

Now in your interview in answer to a question put to you by the police, amongst other things you said, 'I just react instinctively in situations like that, if anyone pulls any weapons or any sort of thing like that on me, I snap.' What did you mean by that answer---I don't like using weapons and that. I don't - people make me angry when they pull out weapons and that.

I'm sorry---People make me angry when they pull out weapons and stuff.

All right---And it just - I just don't think it's fair.

And you said a little later on in answer to a question, 'I went blank for a couple of minutes, maybe, at the most.' What did you mean by that---Just, I couldn't remember.

All right. You couldn't remember what had happened, all right. In your evidence today, you've indicated that you can now recall a sequence of events of what happened---Yeah.

When did that sequence of events become recalled by you, when did you first start to recall what happened---A few months after.

All right---Not exactly sure when, it just started coming.

Now in answer to a question, you volunteered this answer, 'I think I stabbed her with the knives.' In light of what you now recall, what do you say about that statement---It was wrong.

And you were asked about your intention during the course of your altercation and one of the answers you gave was to the effect that you never intended to kill her. What intention, if any, did you have at the time of the altercation with [Ms Shaw]---To restrain her, do something.

To restrain her---Do something, not what happened. Yeah, just to restrain her.

All right. Why was it after the fight when [Ms Shaw] was unconscious, you didn't call for an ambulance or for the police---I don't know. Scared.

Scared of what---No one would believe me.

You were scared no one would believe you---Yeah (ts 618 - 619).

237 The appellant admitted that he had assaulted Mr Gaunt. He said that he had struck Mr Gaunt on about four occasions. Mr Gaunt was not rendered unconscious by these blows. As Mr Gaunt was 'getting back up', the appellant kicked him in the head. A little later, the appellant 'hit him a couple of times in the head, kicked him a couple of more times in the head, and then [Ms Posavac] and [Ms Lenhard] got in the middle and then there was a car battery there. I went to pick that up, picked it up, spilt acid all over myself and then put it back down or threw it back down' (ts 584 - 585).

The application by counsel for KLA for leave to cross-examine the appellant on the whole of his criminal record and on alleged prior inconsistent statements

238 Before counsel for KLA commenced cross-examining the appellant, he made application to the trial judge for leave to cross-examine the appellant on the whole of his criminal record (and not merely those convictions adduced into evidence through Detective Sergeant Marsh) and on alleged prior inconsistent statements said to have been made by the appellant to two psychiatrists, Dr Sam Febbo and Dr Adam Brett, who were engaged to examine him.

239 Counsel for KLA relied on s 8(1)(e) of the Evidence Act 1906 (WA) in support of his contention that he should be permitted to cross-examine the appellant on the whole of his criminal record. He argued that part of the appellant's defence had involved imputations on the character of the prosecution witness, Mr Gaunt, and the deceased Ms Shaw (ts 623 - 625). Counsel for the appellant opposed the application. The prosecutor submitted that s 8(1)(e) had not been enlivened (ts 626). The trial judge ruled that the nature or conduct of the appellant's defence was not such as to involve imputations on the character of the witnesses for the prosecution or the deceased (ts 625 - 627, 632).

240 His Honour refused to allow cross-examination of the appellant on any prior convictions beyond those of which evidence had already been given in the cross-examination of Detective Sergeant Marsh. However, he permitted cross-examination on the circumstances of each of the offences in respect of which evidence as to the fact of conviction had already been given (ts 632, 634).

241 The trial judge decided that, provided s 21 of the Evidence Act was complied with, cross-examination should be permitted on the alleged prior inconsistent statements made to Dr Febbo and Dr Brett (ts 633 - 634).

242 The appellant admitted, in the course of cross-examination by counsel for KLA, that he had been examined by Dr Febbo in September and December 2008 and Dr Brett in March 2009 while he was in custody at Casuarina Prison (ts 637 - 638). He also admitted that he did not tell Dr Febbo or Dr Brett about Ms Shaw having fallen on the knives (ts 637 - 638). He denied, however, that he had not told them about that matter because it was untrue (ts 639).

243 Counsel for KLA cross-examined the appellant at length about his relationship with KLA. The appellant acknowledged that he had commenced a sexual relationship with KLA when she was aged 15 and he was 22 (ts 644 - 645).

244 The appellant admitted that he had hit KLA on two occasions (ts 650), but denied that he had physically abused her more frequently.

245 The appellant agreed with counsel for KLA that he (the appellant) had written a letter to KLA on 17 March 2008 in which he threatened to kill 'anyone - any future partner of hers who might hurt her' (ts 658).

246 Counsel for KLA cross-examined the appellant in detail as to the facts and circumstances of each of his prior convictions for violence (ts 660 - 663).

247 Counsel for KLA also questioned the appellant at length with the object of discrediting his account in evidence-in-chief as to how Ms Shaw came to be stabbed and with a view to establishing that he had wilfully murdered her.

248 The prosecutor then subjected the appellant to a rigorous cross-examination including in relation to how Ms Shaw came by her death and the episode at Hazelmere with Mr Perich.

The further application by counsel for the appellant to discharge the jury

249 After the appellant's cross-examination was completed, his counsel made a further application to the trial judge to discharge the jury. His Honour deferred dealing with the application until after the appellant had been re-examined (ts 716).

250 The application was based on evidence extracted by counsel for KLA in his cross-examination of the appellant to the effect that the appellant had commenced a sexual relationship with KLA when she was aged 15. This evidence, so it was submitted, should not have been adduced and, as a result, the appellant had been seriously prejudiced, and this prejudice could not be adequately guarded against by a direction to the jury.

251 The trial judge held that the evidence in question should not have been elicited. However, his Honour dismissed the application to discharge the jury. He decided that any prejudice to the appellant was not irretrievable. A direction to the jury about the inadmissible evidence would, in the circumstances, be adequate to ensure that the appellant received a fair trial (ts 743 - 745).

252 His Honour dealt with the application on the basis that, as a result of this court's decision that there should be a joint trial, he could only revisit that issue 'if there is new information that comes forward' (ts 743). On this basis, his Honour focused solely on the evidence as to the age of KLA when the sexual relationship commenced in determining whether to discharge the jury or not.

The trial judge's direction to the jury after he dismissed the further application to discharge the jury

253 After the trial judge dismissed the further application to discharge the jury, he gave the jury this direction when they returned:

[Y]ou'll recall that Mr Davies on behalf of [the appellant] when he was leading evidence from [the appellant], [the appellant] gave some brief evidence about his relationship with [KLA], the second accused. Now, obviously that relationship will be important for your deliberations in the case. However, in the course of cross-examination, [counsel for KLA] went further and he [elicited] evidence as to when the relationship started and the ages of the two people when that relationship started. Now, it may or may not be an inappropriate relationship, having regard to the young age of [KLA] at the time it started, but they remained together and had a child. Nevertheless ... this evidence ... should not have come out because it's not relevant when the relationship started and the way of it, or the ages of them. It's appropriate that I direct you now so you can put it out of your minds. If you regard the age as inappropriate, you cannot use that in any way to reason that [the appellant] may have a propensity to commit crime of any sort, and in particular, you cannot use it in any way to infer that because this relationship may have started when [KLA] was 15, that it makes [the appellant] any more likely to commit the crimes with which he is charged, which are, of course, wilful murder, murder, manslaughter, allegedly against a completely different woman. That would be a completely inappropriate and wrong way to use the evidence and I so direct you (ts 747).

254 As I have mentioned, KLA gave sworn evidence at the trial. She gave her evidence on 23 February 2010.

255 KLA said in evidence-in-chief that during her relationship with the appellant he had used cannabis and methylamphetamine, and he had physically abused her. Her evidence was, relevantly, as follows:

And then you and [the appellant] lived in Midland and then went down to Busselton for a period of time, is that right---Yes.

Did anything happen in your relationship while you were in Busselton that you recall---We fought a lot.

All right. What was that about---Him using drugs and one of the fights was I found out that he cheated on me.

All right. And what happened as a result of that fight---After he found out that I knew he came home and we had an argument and he punched me on my arm.

Was that the first time that he'd ever done anything like that to you---Yes.

...

What drugs did you see him use---He smoked cannabis and used speed.

All right. And when you say he used speed, how did he use speed---With a needle.

...

You've mentioned that when you were in Busselton, [the appellant] hit you on the arm, was that the only incident of violence in your relationship or not---No.

How many other times would you say during the course of your relationship that there was violence---At least once a week when we had moved in with [Ms Shaw].

All right. And so you've moved in with [Ms Shaw] roughly when? How many months before she died---I think it was about four, four or five.

Okay. So four or five months back from February, so October, November 2007, around about then---Yep.

So during the months that you were with her, you say that there were incidents of violence every week, is that right---Yes.

And when you say incident of violence, what sort of things would [the appellant] do---He would hit me, throw stuff, yell, anything.

All right. So when you say hit you, where would he hit you and how, with what---He would punch me on my arms.

All right. Did he ever punch you anywhere else---He hit me on my head but I don't think it was with a closed fist.

Okay. And you said he would throw things, what sort of things would he throw---The TV remotes, he threw Emily's nappy bag at me a couple of times.

And did you ever get hit by any of those objects that he threw---Yes.

All right. During those occasions when you were hit in the arms or had things thrown at you, was Emily ever in the room during those occasions---Yes.

All right. I want to ask you about an incident that I've already asked [the appellant] about, it was an incident in December 2007 when the police came to the house and took him away. Do you recall that incident---Yes.

All right. What happened before the police came to the house---He was yelling at me and if I was to yell back, he'd get angry and he was punching on my arm and he hit me that hard that I fell back and I smashed my head on our doorframe.

And what happened after that---He stopped after a while, but I was left with a big lump on my head.

...

Did it happen again after that incident---Yes.

Did you call the police or did [Ms Shaw] call the police about any of the other incidents when things were thrown at you or you were hit in other places---No.

Did anything in terms of violence between you ever happen in any place outside of the houses you were living at---Yes.

Where was that---At Belmont Forum.

And what happened there---?---He had told me that he wanted me to wait for him to get home from work but I thought he just didn't care, and I went to the shop. I had finished eating my lunch and he come up behind me and grabbed me by my hair.

Were you on your own at that time---I was with Emily.

All right. So he told you to wait at home but you went to the shop and he came down to the shop and grabbed you by the hair, is that right---Yes.

What happened after he grabbed you by the hair---He eventually let go and he made me go home (ts 752 - 756).

256 KLA gave evidence that, shortly before her death, Ms Shaw 'got a little bit angry' when she realised that KLA had taken two of her potatoes (ts 759). At that point, the appellant came out of their bedroom, and Ms Shaw and the appellant started yelling at each other (ts 759). This was not an unusual occurrence (ts 759). The yelling was coming from the kitchen (ts 760). KLA was then in the lounge room. Ms Shaw's children were also in the lounge room but at some point they started walking down the hallway towards the kitchen and the yelling (ts 760). KLA did not want Ms Shaw's children to be around the yelling, and KLA therefore followed them down the hallway to retrieve them and take them back to the lounge room (ts 760). By the time she reached the elder of the two children, the child had reached the kitchen and the yelling had stopped (ts 760). KLA gave this evidence of what she observed in the kitchen and of a conversation with the appellant:

[W]hat could you see from where you were standing there---[Ms Shaw] was laying on the floor and [the appellant] was standing above her.

And where was [Ms Shaw] laying on the floor---I could just see her legs from the shelf.

...

Could you see her head and the upper part of her body---No.

All right, and [the appellant] was standing over her, you say---Yes.

Which direction was [the appellant] facing---His back was towards me.

Okay, and did you do or say anything at that stage---I said, 'What have you done?'

And was there any reply---He said that he had been waiting to do that for a long time and he told me to get the kids and take them to the lounge room (ts 760 - 761).

257 KLA told her counsel that the appellant dragged Ms Shaw's body into the bathroom, placed it under the shower and turned on the shower. Later, KLA obtained a doona and helped the appellant place Ms Shaw's body in it. Next, the appellant wrapped the doona in plastic and placed a plastic bag over Ms Shaw's head. On instructions from the appellant, KLA obtained some tape which she wrapped around the plastic on the deceased's body and the plastic bag on her head (ts 761 - 766).

258 KLA said in evidence-in-chief that she assisted the appellant, after he had killed Ms Shaw, because she was scared of the appellant and she did not want him to hurt her (ts 765).

259 On the morning after Ms Shaw's death, the appellant was not always with KLA. For example, KLA walked alone from Ms Shaw's house to a public telephone box on about three or four occasions (ts 774).

260 KLA admitted telling lies to the police on 8 February 2008 during the first part of her video-recorded interview. She explained in her evidence that she conveyed to the police what the appellant had told her to say (ts 779).

261 The trial judge ruled that self-defence, which was raised by counsel for the appellant in his opening address, should not be left to the jury (ts 859).

262 The trial judge ruled that there was 'small but nevertheless sufficient material' in relation to provocation for it to be left for the jury's consideration, and he therefore decided to direct the jury on that issue (ts 861).

263 The prosecutor made his closing address on 24 February 2010.

264 The prosecutor submitted to the jury that, on the evidence, the State's case against the appellant was irresistible. He deliberately stabbed Ms Shaw with the intention of killing her. His actions significantly or substantially caused or contributed to her death. He was therefore guilty of wilful murder.

265 The prosecutor also submitted that, on the evidence, KLA deliberately (although misguidedly) sought to assist the appellant to escape punishment in the knowledge that he had wilfully murdered Ms Shaw. KLA had ample opportunity to inform the police as to what had occurred without fear of any retribution from the appellant. For example, there was no justification for the lies she told to the police during her video record of interview. She was therefore guilty of being an accessory after the fact to wilful murder, as alleged in the indictment.

266 The prosecutor relied on the evidence of Ms Posavac and Mr Gaunt to the effect that the appellant had said, a few days before Ms Shaw's death, that he was going to kill her, as indicative that he stabbed her deliberately and with the intention of killing her. The prosecutor also relied on the evidence of the appellant's assault on Mr Gaunt in endeavouring to persuade the jury that Mr Perich was afraid of the appellant, as a result of Mr Perich having seen the assault, and this fear explained why he had assisted the appellant and had not made a report to the police.

267 However, the prosecutor did not rely on any of the other prejudicial evidence against the appellant that was elicited by counsel for KLA in his cross-examination of the State's witnesses, his cross-examination of the appellant and his examination-in-chief of KLA.

Counsel for the appellant's closing address

268 Counsel for the appellant made his closing address on 24 February 2010.

269 Counsel for the appellant urged the jury to acquit the appellant. It was submitted that there was a reasonable doubt as to whether the stab wounds inflicted on Ms Shaw significantly or substantially caused or contributed to her death. It was reasonably possible, in the circumstances, that she had died from a cardiac arrest. Also, it was submitted that it was reasonably possible, on the evidence, that Ms Shaw had died in the manner described by the appellant in his evidence. According to counsel, Ms Shaw, in a drug-induced and paranoid state, attacked the appellant on the day in question. She deliberately picked up the knives and she used them to attack the appellant in a murderous fit of rage.

270 Counsel for KLA made his closing address on 25 February 2010.

271 In his closing submissions, counsel for KLA was contemptuous about the appellant's case on causation. Counsel said:

Well, my submission to you is this is the easiest join the dots puzzle you're ever going to see. First dot, [Ms Shaw], lying on the ground dead from two stab wounds. Second dot, [the appellant] standing over her while she's lying there bleeding. It's a pretty short and a pretty straight line between those two dots. [The appellant's] case, and the reason that he's raised causation, is just incredibly implausible. I mean, he's floated some bizarre theories. If this wasn't such a serious matter, you might have been tempted to laugh out loud at some of them. It's been extraordinary. She died from a heart problem caused by drugs or, well at roughly the same time, she fell on two knives. Two knives she fell on simultaneously that both went into her on the same side, even though she was holding them up in front of her and she was being bear-hugged, somehow she got one knife around there and one knife around here, and then fell. It's bizarre. There's frankly no evidence that she had a heart problem, no evidence that she died from a heart problem. And we've heard from the pharmacologist there's no evidence that drugs caused her death, absolutely none. You're being asked to accept that out of thin air because the pharmacologist said, 'Well, we can't be absolutely, a hundred per cent sure. I can't rule it out.' It's a one in 50 year case. It's fanciful. It's implausible. It's just simply not there (ts 936).

272 Counsel then painted this picture of the appellant as a violent and frightening man:

What about [the appellant] then and now? Well now, clean and tidy, has a nice short, tidy haircut, speaks very quietly. So quietly that he has to be told to speak up. Well, that's not the real [appellant]. The real [appellant] in February 2008 was a violent young man of 24 ... He's a solid bloke, he throws a good hard punch. The sort of punch that knocks out [Mr Gaunt]. The sort of punch that, a few years earlier, had put a friend of his in a situation where his head smashed into the windscreen so hard that it cracked the windscreen. He's a frightening man. He bashed [Mr Gaunt] into unconsciousness in front of several witnesses. Not just punches; kicks, kicks to the head when he's lying on the ground, and then to follow up - because apparently that's not enough to kick and punch a man into unconsciousness - he picked up a car battery, held it above his head. Well, it's not difficult to guess what he was going to do with the car battery ... He's loud, he's argumentative. He argues with [Ms Shaw], he argues with [KLA], and he's using drugs heavily ...

So he's using drugs, he's using violence, and he's got no difficulty threatening to kill people ...

And as I think I've hopefully pointed out as I've gone along, there's every reason to fear [the appellant]. [KLA] is not the only one who fears [the appellant]. It seems that just about everybody he comes into contact with fears him. He frightens [Ms Shaw], when they're talking about the rent, according to Amber Shaw. He frightens [Ms Posavac]. He frightens [Mr Perich] badly. One of the reasons why is because they saw what he did to [Mr Gaunt]. That would just about frighten anyone. But [Mr Perich] has also seen [the appellant's] handiwork out at Hazelmere. He's seen the dead body of [Ms Shaw]. Now, [KLA] is in that situation as well. She's seen the dead body of [Ms Shaw]. She's seen what [the appellant] is capable of, and she's frightened. And that makes sense ... He'd been violent towards her, you've seen the violence towards [Mr Gaunt], and you've heard about it. He'd been violent towards others, and you know that from his criminal record. You know over the period leading up to this, the period of about seven years I think, back to 2001, he had four other assault convictions of various types. Including some assaults so serious, he got 12 months' gaol. He's not the nice, quiet, polite man who appears in court. He's violent, he's aggressive, he's threatening, and frankly he's a scary person to be around (ts 940- 942).

273 Counsel was disparaging about the appellant's account of what happened in the kitchen when Ms Shaw died:

You might remember that it took [the appellant] more than a year to remember what really happened in the kitchen. Remember the bear hug, remember the fall on the knives. Because for a year he'd said to people, 'Look, there's a big gap in my memory. I'm not sure, I can't remember. She had the knives, I had the knives, blood.' And then more than a year later, he suddenly remembers that there was a struggle and she fell on the knives. Well that's just rubbish (ts 945).

274 Counsel concluded his address by submitting that KLA 'did what she did because of fear for herself, fear for her child, and fear for Carli Shaw's children' (ts 946 - 947). He suggested that if the jury accepted that proposition then the only appropriate verdict in relation to KLA was not guilty.

275 The trial judge's summing up occurred on 25 February 2010.

276 The trial judge directed the jury that there had in fact been two trials proceeding at once; one against the appellant and the other against KLA. Each was charged with a different offence. His Honour suggested that it may be of assistance to the jury if they were to examine the evidence in relation to one trial separately from the evidence in relation to the other. His Honour also suggested that it might help them if they decided, first, whether the State had proved its case against the appellant in any aspect before they proceeded to deal with the State's case against KLA (ts 885 - 886). His Honour said that the jury should remember that their verdicts against the appellant and KLA may be different because the evidence was different (ts 885 - 886).

277 His Honour gave the jury directions on wilful murder (ts 890), murder (ts 890), manslaughter (ts 890 - 891), causation (ts 891 - 895), accident (ts 895 - 897) and provocation (ts 899 - 905) in relation to the appellant's case.

278 His Honour gave the jury a direction on duress under s 32 of the Criminal Code (ts 910 - 911) in relation to KLA's case.

279 The trial judge instructed the jury that the appellant's video record of interview was not evidence against KLA, and KLA's video record of interview was not evidence against the appellant (ts 912 - 913).

280 His Honour addressed the evidence that was relevant to the State's case against the appellant before he addressed the evidence that was relevant to its case against KLA.

281 As to the appellant's prior convictions for violence, his Honour told the jury:

You've heard evidence of the details of [the appellant's] record of assaults. Now, they are relevant in the case of [KLA], as I will come to, but they have no relevance in relation to the case of [the appellant]. It may sound surprising but a moment's [thought] will show you why. They are relevant ... in the case of [KLA] because they show the background by which it is submitted on her behalf that she may have been frightened of him. So they can be used by you in her case in that way. But they cannot be used in any way in the case against [the appellant]. If these people were being tried separately, you would not have heard of the evidence of his records of assault and some other evidence that I will refer to. You simply wouldn't have heard about them. As a general rule, that evidence is not adduced before juries. So treat it as if you haven't heard about it. Now, I know that is hard to do. You have heard about it. Maybe you've formed some prejudicial view of him. Well, now that you are really coming to the crunch time ... put it out of your minds. If you can't put it out of your minds, just be aware whenever you start to think about it, that it is not [relevant] to [the appellant]. Particularly, you may not reason that because he has previous convictions for assault, that in some way he is more likely to have unlawfully killed Ms Shaw. Such reasoning is not only illogical but it's impermissible. The record does not form part of the case against him. He is to be judged solely by the evidence that the State has adduced in his case, not by any prejudice that might arise from evidence that does not relate to his case that on other occasions [and] in completely different circumstances, he may have been violent towards others (ts 913).

282 The trial judge then said that the evidence of the appellant's assault on Mr Gaunt had 'very limited relevance' (ts 914). He said it had relevance to Mr Perich's credibility, as follows:

[Mr Perich's] credibility is very much in issue. You're going to have to weigh it up, and the fact that he had witnessed or observed a violent confrontation is relevant to how he may have reacted. What he may have done, how he gives his evidence, are all matters for you to weigh up. It is not, however, relevant to say, 'Well, this shows that the accused was violent shortly before, therefore, he must have been violent on the night.' It simply is inadmissible for that form of reasoning. The State doesn't put it forward that way. The State doesn't say, 'Well, it shows violent tendencies on the part of [the appellant].'

The State simply puts it forward as I have explained, as part of the background of the relationship between [the appellant], [Mr Perich] and the other witnesses, which of course works both ways. The State uses it to say, 'Well, this is why these witnesses acted this way,' you might more readily believe them. The contrary may be, because they had witnessed this violence, they are more likely to be anti-[the appellant] and more readily be prepared to stitch him up. Now, those are matters for you, I'm simply saying it doesn't all flow one way (ts 914).

283 His Honour reiterated that the jury must not use the evidence of the appellant's prior criminal record or the evidence of his assault on Mr Gaunt to reason that because the appellant had committed these crimes he must therefore have committed the crime which the State alleged in relation to Ms Shaw, namely, an unlawful killing with intent (ts 914).

284 The trial judge then mentioned the evidence of the appellant having commenced a sexual relationship with KLA when she was aged 15. He said that this evidence was relevant only insofar as it may, from KLA's point of view, explain the nature of the relationship between the appellant and KLA, as KLA asserted it to be. Any view that this was an inappropriate relationship had no relevance to the issues in the case (ts 914).

285 His Honour restated that KLA's video record of interview, the evidence of the appellant's prior convictions, the evidence of the appellant's assault upon Mr Gaunt and the evidence of KLA's age when the appellant commenced a sexual relationship with her 'are all irrelevant and must be excluded from your consideration when you are considering the case against [the appellant]' (ts 915).

286 The trial judge then addressed the evidence that was relevant to the State's case against KLA. He told the jury that KLA was entitled to separate consideration of the case against her. In particular:

When you come to consider the case against her, you can take into account the evidence admissible against her and the other evidence available in her case. The evidence is wider than that for [the appellant], but there are limits. For instance, anything that was said to another person outside her hearing is not evidence against her. [The appellant's] video record of interview is not evidence against her. The evidence of [the appellant's] record of convictions for assaults, any acts of violence that she witnessed or observed, she relies on, and she's entitled to do so, in explaining why she says she felt scared of him on the night and why she did the things she did. You're entitled, when you're considering the case against her, to take those matters into account. But remember also that each of them have given evidence, and each of them have, at some points, given evidence against, you might consider, the other. The evidence that they give in court is admissible in both cases. And so don't forget, it's not all a one-way street. For example, [KLA] asserts that on one occasion, she was grabbed by the hair violently. [The appellant] denies that.

It's an issue of fact you may have to resolve as you come to look at the cases. So you are entitled to consider all of the evidence, including the evidence of [the appellant's] background and record. When weighing up whether the State has proved that she acted in order to assist him, or whether there's a reasonable possibility that she acted in order to protect herself. Those are matters for you (ts 915 - 916).

287 Finally, as regards the joint trial, his Honour left the jury with this metaphorical flourish:

I cannot emphasise enough however, the need to build a barbed wire fence down between the two cases in relation to the inadmissible material so far as [the appellant] is concerned, and rigidly put it on the side in relation to [KLA's] case (ts 916).

288 The jury retired to consider their verdicts on 25 February 2010. They delivered their verdicts on 26 February 2010. The jury found the appellant guilty of wilful murder and KLA guilty of having been an accessory after the fact to wilful murder.

289 The appellant relies on five grounds of appeal.

290 Ground 1 alleges that the verdict of the jury that the appellant was guilty of wilful murder was unreasonable in that, although the appellant was identified in the indictment as an accused in accordance with cl 4(1)(a) of sch 1 of the Criminal Procedure Act, the indictment only charged KLA with an offence of being an accessory after the fact and did not contain any charge against the appellant.

291 Ground 2 alleges, in the alternative to ground 1, that count 1 in the indictment improperly alleged more than one offence, contrary to cl 2(4) of sch 1 of the Criminal Procedure Act, namely wilful murder (s 278 of the Criminal Code) in respect of the appellant and accessory after the fact (s 562(1) of the Criminal Code) in respect of KLA, and this occasioned a miscarriage of justice.

292 Ground 3 alleges that there was a miscarriage of justice occasioned by the cross-examination of the appellant by counsel for KLA.

293 Ground 4 alleges that the trial judge made a wrong decision on a question of law in declining to order, pursuant to s 133(4)(a) of the Criminal Procedure Act, that the appellant be tried separately from KLA, and that the jury be discharged pursuant to s 116 of that Act.

294 Ground 5 alleges, in the alternative to ground 4, that there was a miscarriage of justice occasioned by the fact that the appellant was tried jointly with KLA.

295 I agree with McLure P, for the reasons she gives, that grounds 1 and 2 of the appeal are without merit.

Section 133 of the Criminal Procedure Act

296 Section 133(1) of the Criminal Procedure Act provides that the powers in s 133 may be exercised by a court on its own initiative or on an application by an accused and may be exercised before or during a trial.

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

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

299 Section 133(4) provides:

If a court is satisfied that an accused is likely to be prejudiced in the trial of a prosecution notice or indictment because it also charges one or more other accused, the court may order -

(a) that one or more of the accused be tried separately from the other or others; and

(b) the prosecutor to tell the court the order in which the accused will be tried.

300 By s 133(5):

In deciding whether to make an order under subsection (3) or (4) in respect of an indictment to be tried by a jury, it is open to a superior court -

(a) to decide that any likelihood of the accused being prejudiced can be guarded against by a direction to the jury;

(b) to so decide irrespective of the nature of the offence or offences charged; and

(c) to so decide even if -

(i) the evidence on one of the charges is inadmissible on another; or

(ii) the evidence against one of the accused is not admissible against another,

301 Section 133(6) is not relevant to this appeal: it is concerned with an indictment that contains two or more charges of a sexual nature.

302 Section 133(1), by providing that the powers in s 133 may be exercised by a court on its own initiative, reflects the fundamental task of a judge in a criminal trial which is, of course, to ensure a fair trial of the accused. See RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620 [41] (Gaudron ACJ, Gummow, Kirby & Hayne JJ).

Section 624 of the Criminal Code (WA)

303 The provisions of s 133(4) and (5) of the Criminal Procedure Act, in effect, superseded s 624 of the Criminal Code. Section 624 conferred on the court a discretionary power to order separate trials for alleged joint offenders. It did not specify the considerations to be taken into account by the court in exercising its discretion. Section 624 provided:

When 2 or more persons are charged in the same indictment, whether with the same offence or with different offences, the court may at any time during the trial, on the application of any of the accused persons, direct that the trial of the accused persons, or any of them, shall be had separately from the trial of the other or others of them, and for that purpose may, if a jury has been sworn, discharge the jury from giving a verdict as to any of the accused persons.

Joint or separate trials for alleged joint offenders: general principles established independently of s 133 of the Criminal Procedure Act

304 Before the enactment of s 133 of the Criminal Procedure Act, the principles governing the determination of an application for separate trials, where two or more accused were charged with committing an offence jointly, were reasonably well-established. The overriding question was whether separate trials were required to ensure that both or all of the accused received a fair trial. The determination of that question involved a consideration of the interests of the accused and also the public interest.

305 In R v Collie [1991] SASC 2996; (1991) 56 SASR 302, King CJ said, at 308 - 309:

The reasons why there should ordinarily be a joint trial of accused persons charged with committing the crime jointly are expressed in the judgment of the Full Court of the Supreme Court (Vic) in R v Demirok [1976] VicRp 19; [1976] VR 244 at 254:

'The matters of public interest which must be considered in this case, and in all such cases, may be summarised as follows. In the first place, there is the question of the administrative matters of court time spent and public expense incurred if more than one trial is to be conducted. These matters will in many cases not be of very great weight, in others they may assume real significance. Secondly, it is against the interests of justice that there should be inconsistent verdicts, and those interests require that where the accounts of accused persons differ or conflict their differences should be resolved by the same jury at the same trial. Thirdly, and allied with the first two considerations, it has always been the policy of the law to reach finality as expeditiously as possible; and no system could function if it permitted the repeated retrial of the same issues except in situations where the concept of justice so required. Fourthly, the convenience of witnesses must be considered. The lot of a witness in a criminal trial is not a happy one, and unless for good reason witnesses should not be required to give evidence of the same events at a succession of trials.'

In R v Glover (1987) 46 SASR 310 at 312 I expressed the principle as follows:

'I take the view that where two accused persons are charged with offences arising out of an incident in which they have both participated, it is, generally speaking, highly desirable in the interests of justice that they should be tried together. It is, generally speaking, very unsatisfactory for jurors to have to attempt to arrive at the truth of a matter when only one of the persons alleged to have participated in the criminal conduct is before them. In order to arrive at the truth of the matter it is generally highly desirable that the jury should have before it the respective accounts and explanations which are given by all the alleged criminal participants in the incident. There are cases, of course, in which that important consideration has to give way to other considerations. There may be circumstances surrounding the case for the prosecution which would be so prejudicial to a particular accused that a separate trial is imperative, but, generally speaking, participants in the same incident alleged to have been of a criminal nature, or to have resulted in or have included the commission of criminal offences, ought to be tried together.'

306 Those observations of King CJ were referred to, with approval, by Toohey J (Mason CJ & McHugh J agreeing on this issue) in Webb v The Queen [1994] HCA 30; (1994) 181 CLR 41, 88 - 89.

307 The issue of separate trials, where two or more accused are charged with committing a crime jointly, was considered by Callinan and Heydon JJ in Ali v The Queen [2005] HCA 8; (2005) 79 ALJR 662. Their Honours said:

Any application for a separate trial would have been doomed to failure. Section 597B of the Criminal Code (Qld) confers a discretion on the trial judge, at any time during the trial of two or more persons, as here, charged in the same indictment, that the persons charged be tried separately. The events leading up to the murder and dismemberment of the infant, and the guilt or innocence of the appellant and the co-accused, were closely interconnected. Their relationship, their similar motives, their almost equal opportunity to commit the crimes, and their capacity, either separately or jointly to commit them, all argued very strongly in favour of a joint trial. There were no special or other features of the case requiring that they be tried separately. That one might seek to incriminate the other, as each accused here did, could provide no justification for a direction that the appellant and his co-accused be tried separately (R v Palmer [1969] 2 NSWR 13). A joint trial of the appellant and the co-accused served to give the jury the means of obtaining a conspectus of the respective roles of each of them in the crimes with which they were charged [58].

See also Belford v The Queen [2011] QCA 43 [104] (Fraser JA, White JA agreeing).

Joint or separate trials for alleged joint offenders: where one accused adduces evidence as to the propensity of the other accused, including where the accused adducing the evidence alleges that he or she acted under duress by the other accused: principles established independently of s 133 of the Criminal Procedure Act

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

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

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

...

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

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

311 The salient facts of Lowery (No 3) were these. L and K were charged with the sadistic murder of a young girl. They were tried jointly. The Crown's case was that the murder was committed by one or the other, or by both acting in concert. L and K were present at the crime scene. Each of them adduced evidence of the unlikelihood that he could have committed the murder. L referred to his good character and said that he had been unable to prevent the murder because he feared K. K said that he had been under the influence of drugs and had been powerless to prevent L killing the young girl. The trial judge permitted counsel for K, over objection by counsel for L, to call evidence from a psychologist as to the respective personalities of L and K. On the basis of that evidence, counsel for K invited the jury to conclude that it was less probable that K killed the young girl. Both L and K were convicted. L appealed unsuccessfully to the Full Court of the Supreme Court of Victoria on the ground, relevantly, that the psychologist's evidence should not have been admitted. The Privy Council held that the psychologist's evidence was relevant in support of K's case to show that his version of events was more probable than that put forward by L.

312 In R v Gibb [1983] VicRp 78; [1983] 2 VR 155, the applicants, G and M, were convicted of murder after a trial. They were tried together with another man, C, who was acquitted. The Crown case was that G had shot the deceased while M and C were present. G's defence involved an alibi. M admitted that he was present at the crime scene but claimed that he acted under the duress of G. A Crown witness, MM, with whom G had been associated, gave evidence that G and the deceased had been involved in a number of burglaries, and that on one occasion G had told her that he had dug a grave with the intention of murdering and disposing of his brother-in-law. The trial judge refused to permit counsel for M to cross-examine MM as to G's propensity and reputation for violence and as to the fear in which she held him. The Full Court of the Supreme Court of Victoria allowed G's appeal and M's applications. Young CJ, Crockett and King JJ held, relevantly:

(a) Where multiple accused are charged with murder, and the Crown alleges that all of them were present when the killing occurred, the interests of justice ordinarily require that the accused be tried together. The fact that one accused alleges that he was coerced by another accused 'so far from being a reason for separating the trials will generally be a reason for adhering to a joint trial' (163).

(b) The power to order separate trials will not generally be exercised merely because evidence which has been properly admitted in the case of one accused is inadmissible in the case of another and prejudicial to that other. In general, although the Crown may be inhibited to some extent by the evidence it can adduce, an accused should be allowed to adduce (including by calling witnesses and by cross-examining any other witnesses) any evidence which is relevant to his or her defence (163).

(c) In a joint trial it is inevitable that 'some deductions or impressions of the jury in one case must affect their consideration of the other' (165). This consequence must be accepted for the reasons which lead to the ordering of a joint trial (165).

(d) G should have been given a separate trial. Their Honours said:

[T]he course the trial took and in particular the evidence to which we have referred was so prejudicial to [G], and prejudicial to him in a way that would not have been possible if he had been tried separately, that we are called upon to weigh that prejudice against the matters of public interest referred to in R v Demirok [1976] VicRp 19; [1976] VR 244, at p 254. The length of the trial has underlined the significance of those matters. If ever the power referred to in that case is to be exercised this seems to be the occasion for it. The combination of circumstances was most unusual but in the balance between the public interest and a fair trial for [G] we think that the scales come down in favour of [G] (166).

(e) The trial judge should have permitted counsel for M to adduce evidence of G's propensity and reputation for violence. Their Honours elaborated:

Now, evidence of an accused's 'bad character' is relevant to the general issue whether he is guilty of the crime charged, but in the ordinary case it cannot be led by the Crown: it is excluded for reasons of policy and humanity. See Attwood v R [1960] HCA 15; (1960) 102 CLR 353. In the case of a co-accused who seeks to raise a defence of duress, however, no such considerations lead to the exclusion of the evidence and the question for decision, therefore, is whether the evidence is relevant (170).

It was relevant to the issue of duress that G was a person of violent disposition, and it was also relevant that G was a person who had a reputation for violence (170).

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

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

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

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

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

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

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

314 In R v Eriemo [1995] 2 Cr App R 206, the applicant was charged on an indictment containing three counts of burglary. Two counts charged him alone and a third count charged him together with three others. All of the accused were alleged to be principal offenders and all of them pleaded not guilty. Before the commencement of the trial, one co-accused, C, gave notice that he would be defending the charge against him on the basis that he was acting under duress and had joined in the burglary through fear of the applicant and another co-accused (H). Counsel for the applicant and H applied to the trial judge for an order that the trial of C be severed from the trial of the applicant and H. The application was dismissed. The next day, the applicant changed his plea to guilty on all three counts. He then applied for leave to appeal against conviction on the ground that the trial judge had erred in law in dismissing the application to sever the indictment. Leave to appeal was refused. The Court of Appeal (Glidewell LJ, Blofeld & Buxton JJ) held that the applicant's plea of guilty was a bar to an appeal against conviction. Their Lordships also expressed the view that the fact that one co-accused was intending to allege that he had acted under duress by his or her co-accused was not, of itself, a valid reason for severing the trial of the co-accused. Their Lordships said:

When [C] came to be tried, he duly put forward his defence of duress and it succeeded and he was acquitted. His defence involved an attack on the character of this applicant. [C] gave evidence and was allowed to put in evidence the previous convictions of this applicant, but he was not allowed to go further than that. Quite properly the judge ruled that general evidence, such as was suggested in [C's] solicitor's notice, that this applicant was terrorising the people on the estate generally, that he had a propensity to commit offences of violence and matters of that sort, the judge ruled was not admissible, and not properly part of [C's] defence.

Of course we appreciate that for the jury to hear of this applicant's previous convictions would make it much more likely that they would not believe any protestations he had made, that he had not taken part in the particular burglary with which he was charged together with [C], and it would make it much more likely that they would believe [C]. That of itself does not make it so unfair that he should be tried together with [C] that the judge should have severed their trials. The normal rule, and this has frequently been reiterated, is that where it is alleged that defendants are jointly guilty of the same offence they should be tried together: (see the matters set out in paras 1 - 167 and 1 - 168 of the current edition of Archbold (1994).)

The fact that one defendant is intending to say that he has acted under duress by the other defendant is not of itself a valid reason for severing the trial of the individual defendants. Indeed, the interests of justice may well dictate that they should be tried together so that the whole truth can be put before the jury. The interests of justice of course demand that a particular defendant has a fair trial, but they also demand that all material matters which can properly be admitted in the circumstances of the particular case are elicited. For those reasons, had we come to it, we should have concluded in any case that the judge was certainly acting well within his discretion in coming to the conclusion to which he did come, and we should have refused leave to appeal on that ground, if indeed we thought there was any valid right to appeal (211).

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

324 In Cross on Evidence (8th Aust ed, 2010) [19155] fn 238, this statement appears:

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

325 In each of the cases referred to in Cross on Evidence, namely, R v Price [2004] EWCA Crim 1359; [2005] Crim LR 304, R v Robinson [2005] EWCA Crim 3233; [2006] 1 Cr App R 32; R v Mertens [2004] EWCA Crim 2252; [2005] Crim LR 301 and R v Murrell [2005] EWCA Crim 382; [2005] Crim LR 869, the English Court of Appeal referred to the obiter dictum of Lord Steyn in Randall at [35]. See [323] above.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The proper construction of s 133(4) and s 133(5) of the Criminal Procedure Act

335 The power of a court under s 133(4) of the Criminal Procedure Act to order separate trials is not enlivened unless the court is satisfied that an accused is likely to be prejudiced in the trial of, relevantly, an indictment because it also charges one or more other accused. If the court is satisfied that an accused is likely to be prejudiced in the trial because the indictment also charges one or more other accused, the court may, relevantly, in its discretion, order that one or more of the accused be tried separately from the other or others.

336 Section 133(5)(a) of the Criminal Procedure Act provides, in effect, that if a court is satisfied that an accused is likely to be prejudiced by a joint trial, and the court is considering whether to order separate trials, 'it is open' to the court to decide that any likelihood of prejudice 'can be guarded against' by a direction to the jury and, in consequence, to decline to order separate trials.

337 The words 'to so decide' in pars (b) and (c) of s 133(5) refer to the decision under par (a) of that subsection that any likelihood of the accused being prejudiced can be guarded against by a direction to the jury. See Donaldson v The State of Western Australia [2005] WASCA 196; (2005) 31 WAR 122 [96] - [97] (Roberts-Smith JA, Wheeler JA & Miller AJA agreeing in relation to this issue of construction).

338 The apparent purpose or object of Parliament in enacting s 133(5), in the context of a court's power to order separate trials where two or more offenders are jointly charged, was to give effect to Recommendation 273 in the Law Reform Commission of Western Australia's Final Report on the Review of the Criminal and Civil Justice System (Project 92), dated September 1999. The modern approach to statutory interpretation enables a court, at common law and apart from any reliance on such provisions as s 19 of the Interpretation Act 1984 (WA), to have regard to reports of law reform bodies to ascertain Parliament's intention in enacting a statutory provision. See CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; (1997) 187 CLR 384, 408 (Brennan CJ, Dawson, Toohey & Gummow JJ); Newcastle City Council v GIO General Ltd [1997] HCA 53; (1997) 191 CLR 85, 112 - 113 (McHugh J). Recommendation 273, at page 221 of the Final Report, was in these terms:

The existing principles of law which hold that a direction by the trial judge to the jury cannot overcome the prejudice to co-defendants arising from joinder should be overridden. The law should be amended so that if the judge before whom the issue of joinder is brought concludes that prejudice can be overcome by an appropriate direction of the trial judge, joinder of defendants at trial should be permitted.

339 In my opinion, Recommendation 273 did not accurately state the principles which had developed in relation to the exercise of a court's discretionary power to order separate trials where two or more accused were jointly charged. The true principles, of relevance, were that (subject to the observations in the joint judgment in R v Darby [1982] HCA 32; (1982) 148 CLR 668 in relation to conspiracy trials):

(a) a court would order separate trials if it was satisfied that, in the circumstances, the risk of prejudice to an accused from a joint trial could not adequately be neutralised by a direction to the jury, so as to ensure a fair trial;

(b) if, however, the court was satisfied that any risk of prejudice could be neutralised by an appropriate direction, so as to ensure a fair trial, it would not, ordinarily, order separate trials.

340 The form and content of s 133(5) are consistent with Recommendation 273 (and also Recommendation 271 in relation to the joinder of two or more charges against an accused).

341 In my opinion, if a court is satisfied, for the purposes of s 133(4), that an accused is likely to be prejudiced by a joint trial, the court, in deciding whether or not to exercise its discretionary power under s 133(4) to order separate trials, may take into account whether or not the likelihood of such prejudice can be guarded against by a direction to the jury.

342 The phrases 'In deciding whether to make an order under subsection ... (4)' and 'it is open', in s 133(5), are significant. They indicate that whether or not the court's discretionary power under s 133(4), to order separate trials, should be exercised is not to be determined solely by a decision, under s 133(5)(a), as to the efficacy of a direction in guarding against the likelihood of prejudice. Section 133(5) emphasises that the court may refuse to order separate trials on the ground that the likelihood of prejudice to the accused can be guarded against by a direction, notwithstanding the existence of any of the matters referred to in pars (b) and (c) of that subsection. Otherwise, the provisions of s 133(4) and s 133(5) do not specify, emphasise or restrict the considerations which the court may take into account in determining whether or not to exercise its discretionary power under s 133(4).

343 In my opinion, if a court is satisfied, for the purposes of s 133(4), that an accused is likely to be prejudiced by a joint trial, then, subject to s 133(5), the considerations which the court may take into account in deciding whether or not to order separate trials are those which were relevant prior to the enactment of s 133. The overriding question is whether separate trials are required to ensure that both or all of the accused receive a fair trial. The determination of that question involves a consideration of the interests of the accused and also the public interest.

344 My opinion as to the proper construction of s 133(4) and s 133(5) of the Criminal Procedure Act reflects the views I expressed in The State of Western Australia v Bowen [2006] WASCA 133; (2006) 32 WAR 81 [60] - [67].

345 In Bowen, the first and second respondents were charged jointly on indictment that they had possession of a prohibited drug with intent to sell or supply it to another. The State intended that an oral statement made by the second respondent to an investigating police officer, and a video record of an interview between the second respondent and the police, would be adduced in evidence at the joint trial as evidence against the second respondent. The oral statement and the video record of interview would be inadmissible hearsay as against the first respondent. The first respondent made application for a separate trial pursuant to s 133(4) of the Criminal Procedure Act. The primary judge determined that the first respondent would be prejudiced in her trial by the State leading the evidence in question and that directions could not guard against that prejudice. Accordingly, the primary judge granted the application for a separate trial.

346 On appeal in Bowen, this court (Roberts-Smith, Pullin & Buss JJA) unanimously allowed the State's appeal and quashed the primary judge's order for separate trials. This court was unanimously of the view that an appropriate direction by the trial judge to the jury would be sufficient to neutralise any prejudice to the first respondent arising from the adducing of the out of court statements made by the second respondent in relation to her. There was, however, a division within this court as to the proper construction of s 133(4) and s 133(5).

It is only if the court is satisfied the accused is likely to be prejudiced (notwithstanding any direction to the jury) that the court can make such an order. If the court is not so satisfied, the application must be dismissed and the (joint) indictment will stand.

I agree with Pullin JA that there is no room - and indeed no purpose - in the exercise of this statutory discretion for any consideration of administrative matters, such as court time and public expense, or even matters such as the possibility of inconsistent verdicts, forensic expedition, the interest of witnesses and the like. These are matters which bear upon the exercise of the prosecutorial discretion whether or not to charge multiple accused jointly. A decision having been made to present an indictment charging a number of accused jointly, the court will only order severance (in one of the ways contemplated in s 133(4)(a) or (b)) if satisfied an accused so charged is likely to suffer such prejudice from a joint trial, that it cannot be guarded against by a judicial direction.

Looked at in that way, it seems to me the section poses a stringent test to be met before such an order will be made, but where that test is met there can be no further factors to be taken into account and such an order must be made [6] - [8].

See, to similar effect, the reasons of Pullin JA [26].

348 I differed from Roberts-Smith and Pullin JJA in Bowen in that I was of the opinion that the scope of the discretion under s 133(4) was not confined in the manner stated by their Honours.

349 In The State of Western Australia v Micalizzi [2010] WASCA 147, McLure P considered the proper construction of s 133. Her Honour noted that the presence of s 133(5) does not compel or require that the prejudice must be of such a nature as can be guarded against by a direction to the jury. In other words, her Honour said that s 133(5) identifies what is permissible. Its purpose and effect are not to circumscribe the matters that are capable of constituting prejudice for the purposes of s 133(4) [26]. Accordingly, prejudice for the purposes of s 133(4) may derive from some other circumstance than the admission of otherwise inadmissible and prejudicial evidence [27]. Her Honour then observed [28]:

It is unnecessary for the purposes of this appeal to address the question of the scope of the discretion to order separate trials once it has been enlivened. However, it may be thought that the above construction of what can constitute prejudice favours the minority view [that is, the view of Buss JA] on the scope of the discretion in The State of Western Australia v Bowen [2006] WASCA 133; (2006) 32 WAR 81.

350 In the present case, I will decide the issues raised by the appellant in relation to s 133 (in particular, whether, notwithstanding the directions given by the trial judge, there was a miscarriage of justice as a result of the appellant having been tried jointly with KLA) on the basis of the views expressed by the majority in Bowen as to the proper construction of s 133.

351 It is convenient to consider ground 5 before turning to grounds 3 and 4.

352 The issue raised by ground 5 (which is expressed to be in the alternative to ground 4) is whether, notwithstanding the directions given by the trial judge to the jury, a miscarriage of justice was occasioned by the fact that the appellant was tried jointly with KLA.

353 Section 31A of the Evidence Act confers on the courts greater power to admit propensity and relationship evidence than exists at common law.

354 In s 31A(1), 'propensity evidence' is defined by reference to the conduct, character or reputation of the accused or a tendency that the accused has or had. It includes similar fact evidence. Section 31A(1) defines 'relationship evidence' in more specific terms, by reference to the accused's attitude or conduct towards another person, or a class of persons, over a period of time. The categories of 'propensity evidence' and 'relationship evidence', as defined in s 31A(1), are not mutually exclusive. There will, no doubt, often be cases where evidence which answers the description of 'relationship evidence' will also fall within the definition of 'propensity evidence'.

355 The tests for admissibility in s 31A(2)(a) and (b) apply to both 'propensity evidence' and 'relationship evidence', as defined. Neither 'propensity evidence' nor 'relationship evidence' will be admissible under s 31A unless the court considers that:

(a) the evidence would, either by itself or having regard to other evidence adduced or to be adduced, have significant probative value; and

(b) the probative value of the evidence compared to the degree of risk of an unfair trial, is such that fair-minded people would think that the public interest in adducing all relevant evidence of guilt must have priority over the risk of an unfair trial.

356 In Dair v The State of Western Australia [2008] WASCA 72; (2008) 36 WAR 413, Steytler P examined the comparison which s 31A(2)(b) requires. The following points may be noted from his Honour's examination. First, s 31A(2)(b) requires the court to assess the degree of risk of unfairness at trial that will be occasioned by the admission of the evidence in question, the court having already found under s 31A(2)(a) that the evidence has significant probative value [62]. Secondly, the prejudice to an accused from the admission of propensity evidence may include: an over strong tendency by a jury to believe that the accused is guilty of the charge merely because he or she is a likely person to do the acts in question; a tendency by the jury to condemn the accused, not because he or she is believed to be guilty of the charge, but because he or she has escaped punishment for other offences; and that the jury might become confused or distracted from the charge because it concentrates on resolving whether the accused has actually committed the acts constituted by the propensity evidence [63]. Thirdly, when assessing the risk of an unfair trial for this purpose, the court must take into account any directions that might be given to the jury in an attempt to overcome the prejudice, and their likely effect on the jury [64]. Fourthly, after identifying the probative value of the evidence in question and the degree of risk of an unfair trial, the court must consider the conclusion that fair-minded people would draw from a comparison of these issues [66]. Although fair-minded people are reasonable members of the general community who are not lawyers, it must be assumed that such people have informed themselves of 'at least the most basic considerations relevant to arriving at a conclusion founded on a fair understanding of all the relevant circumstances' [66]: Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 [53] (Kirby J).

357 In the present case, the prosecutor did not seek to adduce any 'propensity evidence' or 'relationship evidence' in its case against the appellant or KLA either pursuant to s 31A or at common law.

358 The critical issues in the trial of the appellant were whether the State had proved beyond reasonable doubt that:

(a) the appellant had significantly or substantially caused or contributed to Ms Shaw's death by stabbing her with a knife or knives;

(b) the appellant had unlawfully caused Ms Shaw's death, intending to kill her;

(c) alternatively, the appellant had unlawfully caused Ms Shaw's death, intending not to kill her but to do grievous bodily harm to her;

(d) alternatively, the appellant had unlawfully caused Ms Shaw's death, but without the State having proved beyond reasonable doubt either of the two intents just mentioned;

(e) if the appellant had unlawfully killed Ms Shaw, either intending to kill her or intending to do grievous bodily harm to her, the appellant had not acted under provocation;

(f) Ms Shaw's death was not an event that occurred by accident.

359 The critical (and only material) issue in the trial of KLA was whether the State had proved beyond reasonable doubt that KLA had not acted under duress, in order to protect herself, in cleaning the murder scene, helping the appellant place Ms Shaw's body in the doona, and telling lies to Ms Shaw's de facto partner, friends, associates and police about Ms Shaw's whereabouts and what had happened to her. As I have mentioned, counsel for KLA told the jury in his opening address that KLA did not dispute the State's allegations that KLA assisted the appellant, in the knowledge that he had wilfully murdered Ms Shaw, by cleaning the murder scene, helping the appellant place Ms Shaw's body in a doona, and telling lies to Ms Shaw's de facto partner, friends, associates and police about Ms Shaw's whereabouts and what had happened to her.

360 At the trial, a substantial amount of evidence, which was highly prejudicial to the appellant, was adduced by the State and KLA. Counsel for KLA adduced a significant body of highly prejudicial evidence that had not been elicited by the prosecutor.

361 The highly prejudicial evidence adduced by the State included, relevantly:

(a) Each of Ms Posavac (ts 253) and Mr Gaunt (ts 280) said in evidence-in-chief that, a day or two before Ms Shaw's death, they had heard the appellant say, in essence, that he was going to kill Ms Shaw soon.

(b) Ms Posavac said in evidence-in-chief that, no more than a week before Ms Shaw died, she had seen the appellant break his hand when he punched Mr Gaunt in the head (ts 245 - 246). She also said, in evidence-in-chief, that she had seen Mr Gaunt fall to the ground, unconscious, after the appellant had punched him in the head and that the appellant had kicked him twice in the head before he hit the ground (ts 245). She added that Mr Gaunt was taken to hospital after the incident (ts 246).

(c) Mr Gaunt gave evidence-in-chief about this 'altercation' with the appellant, but his answers to questions from the prosecutor were general and non-specific (ts 281).

(d) Similarly, Mr Perich gave evidence-in-chief about the appellant's injured hand, and how he sustained the injury, but his answers to questions from the prosecutor were general and non-specific (ts 304).

(e) Mr Perich said in evidence-in-chief that when he accompanied the appellant to Hazelmere he saw a fire (ts 299). He then saw the appellant take a petrol tin and pour some petrol on the fire (ts 300). He thought he saw that a body was in the fire and was burning (ts 300). However, Mr Perich told the prosecutor that he could not recall any conversation between the appellant and him while they were at or in the vicinity of the fire (ts 301).

(f) Mr Perich gave evidence-in-chief to the effect that the appellant had given him a shopping bag (being the shopping bag that contained the knives with Ms Shaw's blood) and asked him to hide it (ts 302).

(g) The appellant's video record of interview, including numerous statements adverse to his interests, was tendered by the prosecutor. For example, in the interview: the appellant referred to his assault on Mr Gaunt (interview ts 46); he said he 'zones out' (that is, 'my eyes just go black and I don't remember fuck all') when fighting people who 'pull any weapons' (interview ts 54); he fights 'cunts with knives' and when they produce knives or weapons he 'snaps' (interview ts 74); he said he could not recall the sequence of events in the kitchen which culminated in Ms Shaw's death (interview ts 52); he said he thought he had stabbed Ms Shaw with the knives (interview ts 53 - 56); and he referred to his regular use of illicit drugs including methylamphetamine (interview ts 31).

362 This evidence (apart from the appellant's statements in his video record of interview about his use of illicit drugs) was admissible in the State's case against the appellant. In particular:

(a) The evidence as to the appellant's assertion that he was going to kill Ms Shaw soon was relevant to the truth and reliability of his account as to the circumstances in which Ms Shaw died and to his intention at material times, including whether he intended to kill her, whether he had acted under provocation and whether Ms Shaw's death was an event that occurred by accident.

(b) The evidence as to the appellant's assault on Mr Gaunt was relevant to Mr Perich's credibility and the contest between Mr Perich and the appellant as to what occurred when Mr Perich accompanied the appellant to Hazelmere and as to the conversations and dealings between them at Hazelmere and when they returned to the place where Mr Perich lived. Also, the evidence was relevant to explain why, on Mr Perich's account of the facts, he did not say anything to the appellant, or attempt to try and stop him pouring petrol on the body, at Hazelmere. Further, the evidence was relevant to explain the injury to the appellant's hand which was visible in the video record of interview. However, the evidence as to the appellant's assault on Mr Gaunt was not relied on by the prosecutor as propensity evidence.

(c) What occurred at Hazelmere, the conversations between the appellant and Mr Perich, and Mr Perich's evidence to the effect that the appellant had given him the shopping bag containing the knives and asked him to hide it, were relevant to any inference the jury might draw as to the truth and reliability of the appellant's account as to how Ms Shaw died and to his intention at material times, including the issues of provocation and accident.

(d) The appellant's video record of interview, including numerous of the statements adverse to his interests, was relevant to the truth and reliability of the appellant's account as to how Ms Shaw died and to his intention at material times, including the issues of provocation and accident. An example is the appellant's statements about 'zoning out' when fighting people who 'pull any weapons' or when fighting 'cunts with knives' (interview ts 54, 74). There is a stark contrast between the appellant's account in the video record of interview as to how Ms Shaw died and his account in evidence at the trial as to the events in the kitchen when Ms Shaw received the stab wounds from the knife or knives.

363 This evidence adduced by the State was probative of the appellant's guilt. There was no proper basis for excluding any of it (apart from the appellant's statements in his video record of interview about his use of illicit drugs). For example, the evidence as to the appellant's assault on Mr Gaunt was not merely evidence of the appellant's bad character or disposition.

364 The appellant's statements in his video record of interview about his regular use of illicit drugs, including methylamphetamine, should have been excluded in fairness to the appellant. Counsel for the appellant did not, however, object to the tender of the statements. Other evidence given at the trial by Ms Posavac about providing the appellant, at his request, with some cannabis to smoke on the evening of 7 February 2008 was admissible as part of the res gestae.

365 The highly prejudicial evidence adduced by counsel for KLA, that had not been elicited by the prosecutor, included, relevantly:

(a) Detective Sergeant Marsh gave evidence in cross-examination as to the appellant's prior convictions for offences involving violence (ts 185 - 187).

(b) Ms Posavac said in cross-examination, principally in response to leading questions, that when the appellant kicked Mr Gaunt in the head he was wearing steel capped boots (ts 267) and when Mr Gaunt was lying on the ground unconscious, as a result of the assault, the appellant 'nearly threw a car battery on [Mr Gaunt's] head' (ts 270).

(c) Ms Posavac said in cross-examination, in response to leading questions, that on the evening of 7 February 2008 the appellant had threatened to kill Mr Gaunt (ts 270).

(d) Ms Posavac said in cross-examination, in response to leading questions, that on the evening of 7 February 2008 KLA had told her that the appellant would probably be going to gaol soon (ts 271).

(e) Mr Gaunt gave detailed evidence in cross-examination, in response to leading questions, about the appellant's assault on him (ts 286 - 287).

(f) Mr Gaunt also said in cross-examination, in response to leading questions, that 'a day or two' after the assault, the appellant had told him that he had been 'going to kill' him with the battery (ts 287).

(g) Counsel for KLA, in cross-examination of Mr Perich, elicited, by leading questions, this evidence: the appellant had told him, during the journey to Hazelmere, 'I've fucked up bad this time' and 'I have really hurt someone'; during this journey, the appellant did not say that Ms Shaw had had a drug overdose or had had a heart attack; a detailed account of the appellant's assault on Mr Gaunt; after witnessing this assault, Mr Perich was scared of the appellant; on 8 February 2008, Mr Perich received a threatening text message from the appellant; Mr Perich did not say anything to the appellant, or attempt to try and stop him pouring petrol on the body, at Hazelmere because he was scared of the appellant; and when Mr Perich was at the police station at Curtin House, he was still frightened of the appellant, even though he knew the appellant was then in custody (ts 335 - 338).

(h) Ms Lenhard said in cross-examination, mainly in response to leading questions, that the appellant had said some abusive things to her and she was frightened of him and, also, during the appellant's assault on Mr Gaunt, the appellant stood over Mr Gaunt, with the battery over his head, while Mr Gaunt was lying unconscious (ts 397).

(i) Counsel for KLA cross-examined the appellant on alleged prior inconsistent statements that he had made to the psychiatrists, Dr Febbo and Dr Brett, who had been engaged to examine him (ts 637 - 639, 641, 648, 657).

(j) Counsel for KLA also cross-examined the appellant at length about his relationship with KLA. Counsel extracted: an acknowledgement from the appellant that he had commenced a sexual relationship with KLA when she was aged 15 and he was 22 (ts 645); an admission by the appellant that he had hit KLA on two occasions (ts 650); and an admission by him that he had written a letter to KLA on 17 March 2008 in which he threatened to kill 'anyone - any future partner of hers who might hurt her' (ts 658).

(k) Counsel for KLA also cross-examined the appellant in detail about the facts and circumstances of the appellant's prior convictions for offences involving violence (ts 660 - 663).

(l) KLA said in evidence-in-chief that during her relationship with the appellant he had used cannabis and methylamphetamine (ts 753). He had injected the methylamphetamine intravenously (ts 753). KLA also said in evidence-in-chief that the appellant had physically assaulted her on numerous occasions (ts 754 - 756).

(m) KLA gave evidence-in-chief that she assisted the appellant, after he had killed Ms Shaw, because she was scared of the appellant and she did not want him to hurt her (ts 765).

366 This evidence adduced by counsel for KLA was relevant and admissible in KLA's defence of the State's case against her.

367 The better view appears to be that where a defence of duress is raised, the accused relying on the defence may adduce evidence 'not only of the accused's knowledge of incidents of which the accused had personal knowledge or of which he [or she] had been informed, but also evidence of occurrences of incidents, deposed to by third parties, which incidents are consistent with other evidence given by the accused of his [or her] own state of mind and what induced it': R v Jackson [1982] VicRp 30; [1982] VR 326, 327 (Menhennitt J). These observations by Menhennitt J referred to a ruling made by Sholl J in R v Hector [1953] VicLawRp 72; [1953] VLR 543, 547. Both cases were concerned with the defence of self-defence. However, in Gibb, the Full Court of the Supreme Court of Victoria decided that the ruling of Sholl J should be applied to the defence of duress (170 - 171). See also Re Knowles [1984] VicRp 67; [1984] VR 751, 768 (Crockett, McGarvie & Gobbo JJ); R v Hajistassi [2010] SASC 111; (2010) 107 SASR 67 [15] - [16] (White & David JJ).

368 A significant amount of the highly prejudicial evidence adduced by counsel for KLA, that had not been elicited by the prosecutor, was contained in the prosecution brief. This facilitated counsel for KLA's formulation of the leading questions which he put to the State's witnesses in cross-examination.

369 Although, for the reasons I have given at [362] - [363] above, the evidence as to the appellant's assault on Mr Gaunt was admissible, for certain purposes, in the State's case against the appellant, the prosecutor was unable or unwilling to elicit, in his examination-in-chief, the highly prejudicial evidence on this issue set out at [365] above that counsel for KLA extracted in his cross-examination of Ms Posavac, Mr Gaunt, Mr Perich and Ms Lenhard.

370 The evidence of Detective Sergeant Marsh as to the appellant's prior convictions for offences involving violence was not admissible in the State's case against the appellant. The rule of exclusion in relation to an accused's bad character or disposition is, of course, based, not on the ground that the evidence is irrelevant, but on reasons of policy and fairness to the accused. See Attwood v The Queen [1960] HCA 15; [1960] HCA 15; (1960) 102 CLR 353, 359 (Dixon CJ, McTiernan, Fullagar, Taylor & Menzies JJ); Markby v The Queen [1978] HCA 29; (1978) 140 CLR 108, 116 (Gibbs ACJ, Stephen, Jacobs & Aickin JJ agreeing); Perry v The Queen [1982] HCA 75; (1982) 150 CLR 580, 585 (Gibbs CJ) 603 (Wilson J), 609 (Brennan J).

371 When Detective Sergeant Marsh gave the evidence in question no basis existed for its admission under s 8(1)(e) of the Evidence Act. The prosecutor did not make an application to the trial judge at any stage of the trial for leave to adduce evidence of the appellant's bad character or disposition (including his prior convictions) under that provision. Although it is arguable that counsel for the appellant's cross-examination of Mr Perich involved imputations on his character, I am satisfied that if the prosecutor had made an application under s 8(1)(e) considerations of fairness would have required the exclusion of evidence as to the appellant's bad character or disposition (including his prior convictions). See Phillips v The Queen [1985] HCA 79; (1985) 159 CLR 45, 56 - 58 (Mason, Wilson, Brennan & Dawson JJ). Further, as I have mentioned, the prosecutor did not, at any time, seek to adduce any 'propensity evidence' or 'relationship evidence' in its case against the appellant either pursuant to s 31A of the Evidence Act or at common law. If the prosecutor had made an application under s 31A to adduce evidence of the appellant's prior convictions for offences involving violence as 'propensity evidence', I am satisfied that the application should have been dismissed in that the probative value of the evidence, compared to the degree of risk of an unfair trial, was not such that fair-minded people would think that the public interest in adducing all relevant evidence of guilt must have priority over the risk of an unfair trial. The evidence of the prior convictions was not evidence which directly related to the facts in issue at the trial. The admission into evidence of the prior convictions would have created inordinate suspicion against the appellant and undermined the presumption of innocence. The risk of an unfair trial was real and substantial. The application of the common law principles relating to 'propensity evidence' would not have produced a different result. See Pfennig v The Queen [1995] HCA 7; (1995) 182 CLR 461, 512 - 513 (McHugh J).

372 For the reasons I have given at [370] - [371] above in relation to the evidence of Detective Sergeant Marsh, the evidence extracted by counsel for KLA in his cross-examination of the appellant about the detailed facts and circumstances of the appellant's prior convictions for offences involving violence was not admissible in the State's case against the appellant or should have been excluded as a matter of fairness.

373 The evidence extracted by counsel for KLA in his cross-examination of:

(a) Ms Posavac about the appellant's threat to kill Mr Gaunt;

(b) Ms Posavac about KLA's assertion that the appellant would probably be going to gaol soon;

(c) Mr Gaunt about the appellant's assertion that he had been 'going to kill' him with the battery;

(d) Ms Lenhard about the appellant having said some abusive things to her and about her being frightened of him; and

(e) the appellant about KLA's age when he commenced his sexual relationship with her, his having hit KLA on two occasions and his having written a letter to KLA in which he threatened to kill 'anyone - any future partner of hers who might hurt her',

was not admissible in the State's case against the appellant or should have been excluded in fairness to him.

374 This evidence was merely evidence of the appellant's bad character or disposition. It should not have been admitted under s 8(1)(e) of the Evidence Act. Also, as I have mentioned, the prosecutor did not, at any time, seek to adduce any 'propensity evidence' or 'relationship evidence' in its case against the appellant either pursuant to s 31A of the Evidence Act or at common law. If the prosecutor had made an application under s 31A to adduce any of this evidence in the State's case as 'propensity evidence' or 'relationship evidence', I am satisfied that the application should have been dismissed in that the probative value of the evidence, compared to the degree of risk of an unfair trial, was not such that fair-minded people would think that the public interest in adducing all relevant evidence of guilt must have priority over the risk of an unfair trial. None of this evidence related directly to the facts in issue at the trial and the admission of the evidence would have created inordinate suspicion against the appellant and undermined the presumption of innocence. There was a real and substantial risk of an unfair trial.

375 The fact that the appellant had made admissions, in his video record of interview with the police, including statements indicating that he was a person of bad character or disposition (for example, the statements about his assault on Mr Gaunt and his 'zoning out' when fighting people who 'pull any weapons' or when fighting 'cunts with knives') did not entitle the State to adduce further or other evidence as to the appellant's bad character or disposition.

376 Similarly, for the reasons I have given at [373] - [375] above, the evidence given by KLA that during her relationship with the appellant he had used cannabis and methylamphetamine and had physically assaulted her on numerous occasions, and KLA's evidence that she assisted the appellant, after he had killed Ms Shaw, because she was scared of the appellant and she did not want him to hurt her, was not admissible in the State's case against the appellant or should have been excluded in fairness to him. I also note that the State was not entitled to call KLA as a witness in its case against the appellant. See s 8(1)(a) of the Evidence Act; Ryan v The State of Western Australia [2011] WASCA 7 [57] (McLure P, Pullin JA & Mazza J agreeing). The State was not entitled to compel KLA to appear as a prosecution witness and give evidence as to what she observed in the kitchen and of her conversation with the appellant shortly after Ms Shaw had been stabbed; in particular, her evidence about Ms Shaw lying on the floor, the appellant standing over her and the appellant saying that 'he had been waiting to do that for a long time' (ts 760 - 761).

377 Although, for the reasons I have given at [362] - [363] above, the evidence of Mr Perich about what occurred when Mr Perich accompanied the appellant to Hazelmere, and the communication and dealings between them at Hazelmere and upon their return to the place where Mr Perich lived, was admissible in the State's case against the appellant, the prosecutor was unable or unwilling to elicit from Mr Perich, in his examination-in-chief, the highly prejudicial evidence set out at [365] above that counsel for KLA extracted in cross-examination.

378 The evidence elicited by counsel for KLA in his cross-examination of the appellant about alleged prior inconsistent statements made by the appellant to Dr Febbo and Dr Brett was admissible in the State's case against the appellant. This evidence was probative of a fact in issue, namely, the truth and reliability of the appellant's account as to how Ms Shaw came by her death and his intention at material times.

379 In my opinion, notwithstanding the directions given by the trial judge to the jury, a miscarriage of justice was occasioned by the appellant being tried jointly with KLA. My reasons are as follows.

380 First, at the trial a significant body of evidence, which was highly prejudicial to the appellant and which I have summarised at [365] above, was adduced by counsel for KLA. The evidence was admissible in KLA's defence of the State's case. However, most of the evidence was not admissible or should have been excluded in the State's case against the appellant, and the prosecutor had been unwilling or unable to elicit other parts of the evidence in his examinations-in-chief of the State's witnesses.

381 Secondly, subject to one exception, when the highly prejudicial evidence, that was not admissible or should have been excluded in the State's case against the appellant, was given, the trial judge did not (and he was not requested to) warn or instruct the jury that the evidence in question was only relevant to KLA's defence of the State's case against her and had no relevance to the State's case against the appellant. The only exception was his Honour's warning or instruction to the jury after counsel for KLA put to the appellant in cross-examination, and the appellant admitted, that KLA was aged 15 when he commenced a sexual relationship with her. See [253] above.

382 The obiter dictum of Lord Steyn in Randall at [35] was enunciated in the context of a joint trial where both accused were charged as principal offenders and both ran cut-throat defences; that is, each accused denied that he was the offender and alleged that the other accused had killed the victim. His Lordship's dictum is not consistent with the manner in which juries have been directed, in similar circumstances, in Western Australia. See Russell No 1, where Miller JA (McLure & Pullin JJA agreeing) said [65]:

It can confidently be said that a jury is capable of performing the intellectual task of complying with a direction that evidence of the first respondent's prior convictions for offences of violence is not to be used as evidence against him, but only to be used in considering the case against the second respondent. See Bowen per Pullin JA at [41]; The State of Western Australia v Osborne [2007] WASCA 183 per Wheeler JA at [39]; Zammit v The State of Western Australia [2007] WASCA 66; (2007) 34 WAR 302 per Steytler P at [65]; Mansell v The State of Western Australia [2009] WASCA 140 per Miller JA at [48] - [50].

In any event, I am not persuaded that Lord Steyn's dictum was intended to apply where, as in the present case, the accused were not charged as principal offenders and cut-throat defences were not run.

383 Thirdly, the trial judge should not, in my respectful opinion, have left KLA's defence of duress to the jury. As to the elements of this defence, see Smith v The State of Western Australia [2010] WASCA 205; (2010) 204 A Crim R 280 [6] - [18] (McLure P, Owen JA agreeing). When counsel for KLA closed her case, the evidence of duress relied upon by KLA could not, taken at its highest in favour of KLA, have led a reasonable tribunal of fact, properly instructed, to have a reasonable doubt that each of the elements of the defence had been negatived. See Braysich v The Queen [2011] HCA 14; (2011) 85 ALJR 593 [17], [36] (French CJ, Crennan & Kiefel JJ). In particular, at least some of the conduct relied on by the State in its case against KLA (for example, the lies told to the police about Ms Shaw's whereabouts and what had happened to her) was not, on any view, reasonably necessary in order to enable her to save herself from serious harm or to resist the appellant's alleged threat of violence.

384 Accordingly, despite counsel for KLA's concerted attack on the appellant's credibility and defence throughout the trial, KLA did not satisfy the evidential onus on her in relation to the defence of duress. It follows that, based on the manner in which KLA ran her case, she did not have a defence. The concerted attack on the appellant's credibility and his defence did not advance her case in relation to guilt or innocence.

385 Fourthly, if the prosecutor had run the State's case against the appellant differently, for example, by seeking to adduce 'propensity evidence' against him, then, on the assumption that any such evidence was admissible against the appellant, there is a reasonable prospect that the appellant may have conducted his defence differently, at least to the extent of endeavouring, by all legitimate means, to negate or minimise the prejudicial effect of the propensity evidence.

386 Fifthly, the appellant's credibility (that is, his truthfulness and reliability) was crucial to his defence. In particular, if the jury thought there was a reasonable possibility that the appellant's account of the facts and circumstances attending Ms Shaw's death and his intention at material times, and his visit with Mr Perich to the site at Hazelmere where her body had been dumped and burned, might be true, this should have resulted in a verdict other than guilty of wilful murder.

387 Sixthly, the order of addresses and cross-examination by counsel at the trial involved counsel for the appellant addressing after the prosecutor and before counsel for KLA, and counsel for the appellant cross-examining the State's witnesses before counsel for KLA. The sole matter in issue between the State on the one hand and KLA on the other was whether the State could prove beyond reasonable doubt that KLA had not acted under duress within s 32 of the Criminal Code and, in these circumstances, counsel for the appellant was, in effect, sandwiched between two prosecutors. It was necessary for counsel for the appellant to endeavour to anticipate, in his addresses and in his cross-examination of the State's witnesses, what matters would be raised and what evidence would be extracted by counsel for KLA in his addresses and cross-examination. A trial judge has a discretion as regards the manner in which evidence may be adduced. This discretionary power facilitates the fulfilment of a trial judge's duty to ensure that the issues before the court are investigated not only fully, but fairly. See Stack v The State of Western Australia [2004] WASCA 300; (2004) 29 WAR 526 [93] - [102] (Steytler J, Templeman J agreeing). In the present case, it does not appear to have occurred to anyone at the trial that, given the sole matter in issue between the State and KLA, counsel for the appellant should make his addresses and cross-examine the State's witnesses after counsel for KLA.

388 Seventhly, as I have mentioned, a significant amount of the highly prejudicial evidence adduced by counsel for KLA, that had not been elicited by the prosecutor, was contained in the prosecution brief. Counsel for KLA extracted the evidence in question by asking leading questions of the State's witnesses in cross-examination. These witnesses were not adverse or opposed to KLA's interests. As I have mentioned, the only material issue in the trial of KLA was whether the State could prove beyond reasonable doubt that KLA had not acted under duress. A trial judge has a discretion to disallow leading questions in the course of cross-examination. See Stack [105]. Although it would not have been in the interests of justice, in the present case, for that discretion to have been exercised, as between the State and KLA, for the purpose of disallowing leading questions by counsel for KLA in cross-examination, the ability of counsel for KLA to ask leading questions, in the circumstances I have described, operated to the material disadvantage of the appellant, especially when counsel for KLA cross-examined the State's witnesses after counsel for the appellant.

389 Eighthly, the trial judge appears to have been of the view that it was not open to him to exercise the power under s 133(4)(a) of the Criminal Procedure Act to order separate trials unless 'new material or sufficiently new material' was put forward 'that would justify my departing from a decision which is binding upon me' (ts 276). See also his Honour's comment at ts 743. By 'new material or sufficiently new material' his Honour meant material that was not contained in the prosecution brief. In my opinion, this court in Russell No 1 did not decide, expressly or impliedly, that the trial judge should not exercise the power under s 133(4)(a) except on the basis of material that was not contained in the prosecution brief. The ratio decidendi of this court's decision was that, on the evidence before the trial judge, there was an insufficient foundation for his Honour's conclusion that KLA would be advancing the defence of duress at the trial [46]; in consequence, there was no basis for his Honour to be satisfied that the appellant was likely to be prejudiced by a joint trial; and, therefore, the discretion to order separate trials was never enlivened [50].

390 Also, the trial judge appears to have been of the view that this court decided in Russell No 1 that, in any and all circumstances that might emerge at the trial, any likelihood of the appellant being prejudiced by a joint trial could be guarded against by a direction to the jury (ts 274, 276 - 277). In my opinion, this court merely noted in an obiter dictum that a direction to the jury could overcome any potential prejudice to the appellant occasioned by 'the admission into evidence of his prior convictions for violent offences' [58], [65], [66] (emphasis added).

391 Further, the trial judge appears to have been of the view that the justices who heard the appeal in Russell No 1 must have read the prosecution brief and, on the basis of their reading of that material, decided to set aside his Honour's order for separate trials. However, as I have mentioned, this court decided the appeal in Russell No 1 on the basis of limited information placed before it. The parties do not appear to have referred to the prosecution brief. None of the contents of the brief is set out in Miller JA's reasons. His Honour merely referred to the trial judge's comments about the brief.

392 There is no doubt that the trial judge's views, as to what was decided by this court in Russell No 1 and the implications of that decision, affected his Honour's approach to the initial application by counsel for the appellant to discharge the jury. Also, his Honour's observations about Russell No 1, made in the course of ruling on the initial application, would undoubtedly have affected counsel for the appellant's approach when he made the further application to discharge the jury. As I have mentioned, the further application was based solely on evidence extracted by counsel for KLA in his cross-examination of the appellant to the effect that the appellant had commenced a sexual relationship with KLA when she was aged 15.

393 Ninthly, I am not persuaded that counsel for the appellant at the trial decided intentionally, for forensic or tactical reasons, not to object to any passages in the appellant's video record of interview with the police or any other evidence at the trial which was irrelevant or inadmissible or which should have been excluded in the exercise of the trial judge's discretion. See, generally, TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124; Stanoevski v The Queen [2001] HCA 4; (2001) 202 CLR 115.

394 Tenthly, the trial judge stressed to the jury in his summing up that the evidence given about the appellant's prior criminal record (relevantly, his convictions for offences involving violence) and KLA's video record of interview with the police were irrelevant to the State's case against the appellant (ts 913). His Honour then told the jury that the evidence of the appellant's assault on Mr Gaunt had 'very limited relevance' (ts 914). It was only relevant to the credibility of Mr Perich and as part of the background of the relationship between the appellant, Mr Perich and the other witnesses (ts 914). His Honour said that the evidence of the appellant's prior criminal record and his assault on Mr Gaunt could not be used to reason that 'because he has committed these crimes, he therefore must have committed the crime which the State alleges against him, which is an unlawful killing with intent' (ts 914). Next, his Honour told the jury that the age at which the appellant and KLA began their sexual relationship was evidence 'only insofar as it may, from [KLA's] point of view, explain the nature of the relationship as she asserts it to be' (ts 914). His Honour said that the relationship between the appellant and KLA was irrelevant to the State's case against the appellant (ts 915). His Honour instructed the jury that when they were considering the State's case against the appellant they must exclude from their consideration the evidence as to his prior criminal record, his assault on Mr Gaunt, his relationship with KLA and KLA's video record of interview with the police (ts 915). Finally, in this connection, his Honour emphasised to the jury 'the need to build a barbed wire fence down between the two cases in relation to the inadmissible material so far as [the appellant] is concerned, and rigidly put it on the side in relation to [KLA's] case' (ts 916).

395 The trial judge did not, however, mention in his summing up or at any other stage of the trial:

(a) Ms Posavac's evidence, under cross-examination by counsel for KLA, that on the evening of 7 February 2008 the appellant had threatened to kill Mr Gaunt;

(b) Ms Posavac's evidence, under cross-examination by counsel for KLA, that on the evening of 7 February 2008 KLA had told her that the appellant would probably be going to gaol soon;

(c) Mr Gaunt's evidence, under cross-examination by counsel for KLA, that 'a day or two' after the assault, the appellant had told him that he had been 'going to kill' him with the battery;

(d) the appellant's evidence, under cross-examination by counsel for KLA, that he had written a letter to KLA on 17 March 2008 in which he threatened to kill 'anyone - any future partner of hers who might hurt her'; or

(e) Ms Lenhard's evidence, under cross-examination by counsel for KLA, that she was frightened of the appellant.

396 Eleventhly, when the trial judge commenced his summing up to the jury the trial had already occupied 10 sitting days. By that time:

(a) the highly prejudicial evidence that was not admissible or should have been excluded in the State's case against the appellant or that was not elicited by the prosecutor in his examinations-in-chief; and

(b) the highly prejudicial evidence that was only admissible in the State's case against the appellant for a limited purpose, but in circumstances where the limited purpose was not explained to the jury before the commencement of the summing up (with the exception of the evidence as to KLA's age when the sexual relationship commenced),

must already have had a seriously adverse impact on the jury's view of the appellant's truthfulness, reliability, character and disposition, and the merits of his defence.

397 The jury's view about the appellant's credibility was likely to have been formed, as a matter of impression, on a gradually evolving basis as the evidence emerged at the trial. In the very unusual circumstances of the present case, it is unrealistic to think that this impression could have been wholly or even substantially set aside when the jury came to examine the State's case against the appellant, including the appellant's evidence in relation to that case, by reference to the evidence which the trial judge said, in his summing up, was admissible in the State's case against him.

398 Twelfthly, against the background I have described at [380] - [397] above, the trial judge's directions to the jury were not capable of redressing appropriately, at a very late stage of the trial, the seriously negative effect of the combined force of the highly prejudicial evidence, to which I have referred at [365] above, on the jury's perception of the appellant and his defence. By the time his Honour commenced his summing up, at the latest, it was readily apparent that the appellant was being prejudiced in the trial of the indictment because it also charged KLA. The discretion conferred by s 133(4) of the Criminal Procedure Act was enlivened. By s 133(1), the discretionary power to order separate trials (and discharge the jury) was exercisable, by the trial judge on his own initiative or on an application by the appellant, during the trial. However, when his Honour commenced his summing up (at the latest) it was not open to decide that the prejudice to the appellant could be guarded against by a direction to the jury, as contemplated by s 133(5)(a).

399 As I have mentioned, s 133(1), by conferring on a judge the discretionary power to order separate trials on his or her own initiative, reflects the fundamental task of a judge in a criminal trial, namely, to ensure a fair trial of the accused. In the circumstances, the fact that the appellant was not tried separately from KLA occasioned a miscarriage of justice. The appellant did not receive a fair trial.

400 I should emphasise that my conclusion that there was a miscarriage of justice is based upon the combined force of all of the reasons I have given at [380] - [398] above.

401 The interests of justice ordinarily require that, where two or more accused are charged with committing a crime jointly, they should be tried at a joint trial, but the facts and circumstances of the present case were exceptional.

402 Although KLA was in Ms Shaw's house when she died, KLA did not witness the circumstances of her death, including the interaction between the appellant and Ms Shaw in the kitchen and laundry. The appellant and KLA were not running cut-throat defences; that is, this was not a case where each of the accused was alleging that the other accused had killed the victim. The State alleged that the appellant was the principal offender and KLA was 'merely' an accessory after the fact. KLA asserted, in essence, that the appellant had wilfully murdered Ms Shaw, but the appellant made no material allegation against KLA. If the trial judge had ordered separate trials and directed the prosecutor to tell the court, in accordance with s 133(4)(b) of the Criminal Procedure Act, the order in which the appellant and KLA would be tried, there is no doubt, in my opinion, that the State would have elected to try the appellant before it tried KLA. In these circumstances, in particular, where KLA was charged 'merely' with being an accessory after the fact, there was no prospect that an order for separate trials might result in relevantly inconsistent verdicts.

403 The appellant alleges in ground 3 that there was a miscarriage of justice at the trial occasioned by counsel for KLA's cross-examination of him. It is unnecessary, in view of my decision on ground 5, to consider ground 3.

404 The appellant alleges in ground 4 that the trial judge made a wrong decision on a question of law by declining to order, pursuant to

s 133(4)(a) of the Criminal Procedure Act, that the appellant be tried separately from KLA, and that the jury be discharged pursuant to s 116 of that Act. It is unnecessary, in view of my decision on ground 5, to consider ground 4.

405 It must be acknowledged that the State had a powerful case against the appellant that he had wilfully murdered Ms Shaw.

406 However, in my opinion the miscarriage of justice which occurred at the trial involved a significant denial of procedural fairness. This necessarily precludes the application of the proviso in s 30(4) of the Criminal Appeals Act. See, for example, Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300 [45] - [46] (Gleeson CJ, Gummow, Kirby, Hayne, Callinan & Heydon JJ).

407 I would grant leave to appeal on grounds 1, 2 and 5, but refuse leave on grounds 3 and 4.

408 The appeal should be allowed, the judgment of conviction for wilful murder should be set aside, and a new trial for the appellant should be ordered.

409 MAZZA J: I agree with McLure P for the reasons that she gives, that grounds 1 and 2 should be dismissed.

410 I agree with Buss JA that ground 5 should be upheld. There has been a miscarriage of justice and the appeal should be allowed. In light of this conclusion, I consider that it is unnecessary to decide grounds 3 and 4.

411 I am grateful to both McLure P and Buss JA for their comprehensive description of the events preceding the trial and of the trial itself before McKechnie J, including the evidence, his Honour's rulings and the summing up. There is no need for me to repeat what they have already said.

412 I will briefly express my own reasons for reaching the conclusion that I have on ground 5.

413 I respectfully adopt Buss JA's analysis of the construction of s 133(4) and s 133(5) of the Criminal Procedure Act 2004 (WA).

414 The issue raised by ground 5 is whether, notwithstanding the directions given by his Honour in the summing up, there was a miscarriage of justice because the appellant and KLA were tried together.

415 It is, of course, fundamental that whatever the strength of the evidence against an accused, he or she is entitled to a fair trial according to law: TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124 [76] (McHugh J). Where that does not occur, there has been a miscarriage of justice.

416 This court is bound by s 30(3)(c) of the Criminal Appeals Act 2004 (WA), subject to the provisions of s 30(4), to allow an appeal if, in its opinion, there has been a miscarriage of justice.

417 The phrase, 'miscarriage of justice', should not be construed narrowly: Davies & Cody v The Queen [1937] HCA 27; (1937) 57 CLR 170, 180. It encompasses a multiplicity of situations including those cases where, although the trial has been conducted correctly, the course of events which occurred has resulted in it miscarrying.

418 In the context of joint trials, this was recognised in R v Demirok [1976] VicRp 19; [1976] VR 244, in which the Full Court said:

Essentially, an accused man is entitled to a trial conducted in accordance with the relevant rules, the objects of which include ensuring that the evidence tendered against him is admissible evidence and that he is not exposed to prejudice by the introduction against him of material which is irrelevant or, in some situations, only marginally relevant. In very rare cases, of which we think this is one, although the trial has been correctly conducted, the result may nevertheless have been to expose the accused man to a conviction influenced by material which was both inadmissible and highly prejudicial. In such a situation, we think that it is not satisfactory to say that, the rules governing trials having been observed, there is no miscarriage of justice. To do so is to elevate the rules above the end which they are designed to produce. The miscarriage lies in the fact that, despite the correct application of the various rules, the trial has not been of a kind which those rules are intended to produce (255).

419 With respect, the Full Court was right to emphasise the very rare nature of a correctly conducted trial resulting in a miscarriage of justice. This is because, generally speaking, where persons are charged with offences arising out of an episode in which they are both alleged to have participated, it is in the interests of justice that they be tried together.

420 King CJ put the principle this way in R v Glover (1987) 46 SASR 310:

I take the view that where two accused persons are charged with offences arising out of an incident in which they have both participated, it is, generally speaking, highly desirable in the interests of justice that they should be tried together. It is, generally speaking, very unsatisfactory for jurors to have to attempt to arrive at the truth of a matter when only one of the persons alleged to have participated in the criminal conduct is before them. In order to arrive at the truth of the matter it is generally highly desirable that the jury should have before it the respective accounts and explanations which are given by all the alleged criminal participants in the incident. There are cases, of course, in which that important consideration has to give way to other considerations. There may be circumstances surrounding the case for the prosecution which would be so prejudicial to a particular accused that a separate trial is imperative, but, generally speaking, participants in the same incident alleged to have been of a criminal nature, or to have resulted in or have included the commission of criminal offences, ought to be tried together (312).

421 The general position does not change merely because one accused alleges that he or she acted under the duress of another accused: R v Gibb & McKenzie [1983] VicRp 78; [1983] 2 VR 155, 163 or because some evidence elicited in the case of one accused is inadmissible in the case of another accused. Further, a joint trial may occur where evidence of prior convictions is adduced: The State of Western Australia v Russell [2009] WASCA 154.

422 I agree with Buss JA's analysis of the admissibility of the evidence adduced at the trial between [360] and [378]. In particular, I agree that the following evidence was not admissible in the State's case against the appellant:

(a) the evidence of the appellant's prior convictions elicited by KLA's counsel from Detective Sergeant Marsh and the facts and circumstances of those convictions;

(b) the evidence elicited by KLA's counsel in cross-examination of Ms Posovac, Mr Gaunt, Ms Lenhard and the appellant set out at [373] of Buss JA's reasons; and

(c) the evidence given by KLA set out at [376] of Buss JA's reasons.

423 To my mind, there can be no doubt that the combined force of the evidence which was inadmissible against the appellant in the State's case against him was highly prejudicial to him.

424 The evidence was adduced gradually over the course of the trial. A significant portion of it was adduced in KLA's counsel's cross-examination of prosecution witnesses and could not be dealt with at the time by the appellant's counsel, who cross-examined first. Apart from his Honour's direction to the jury about the appellant engaging in a sexual relationship with KLA when she was 15 years of age, no warning was given to the jury about the other evidence inadmissible in the State's case against the appellant at the time it was given.

425 In addition to these matters, it is highly relevant to the assessment of whether there was a miscarriage of justice that KLA's defence of duress should not have, for the reasons given by both McLure P and Buss JA, been left to the jury. It seems to me unfair to the appellant that the highly prejudicial evidence adduced by KLA, which would never have been admissible if the appellant had been tried alone, was used in support of a defence which, as a matter of law, was not open.

426 Finally, but not least, the State's case was not run on the basis that the evidence adduced on behalf of KLA was propensity evidence in its case against the appellant, either at common law or pursuant to s 31A of the Evidence Act 1906 (WA).

427 His Honour's directions were, in their terms, accurate and plainly intended to neutralise the prejudice caused to the appellant by the joint trial. His Honour used clear and direct language to the jury and instructed them to ignore the evidence which was inadmissible in the State's case against the appellant. The metaphor of the barbed wire fence between the cases of the appellant and KLA was both appropriate and powerful.

428 However, his Honour did not refer to some significant portions of the prejudicial evidence which was inadmissible against the appellant, as Buss JA has already noted. Moreover, although it is assumed that the jury will faithfully apply a trial judge's directions: Gilbert v The Queen [2000] HCA 15; (2000) 201 CLR 414 [13], the damaging effect and the volume of the prejudicial evidence in this case was such that I do not think that it could be overcome by direction, because the prejudice was likely to be so great that it would not be reasonable to expect the jury to exclude it from its consideration of the State's case against the appellant: Leaman v The Queen (1987) 28 A Crim R 104, 108 - 109.

429 Having regard to the combined force of all of the circumstances I have mentioned, I regard this case as being one of those very rare cases where, on its facts, it has been demonstrated that the joint trial has occasioned a miscarriage of justice.

430 This is not a case where it would be appropriate to apply the proviso: s 30(4) of the Criminal Procedure Act. This is because the miscarriage of justice has led to a significant denial of procedural fairness to the appellant. The conviction of the appellant must be set aside and a retrial ordered.

(1) Leave to appeal on grounds 1, 2 and 5 is granted.

(5) The appeal is allowed, the conviction set aside and a new trial ordered.