Criminal law - Appeals against conviction - Five of six co-accused convicted after a joint trial of murder - The other co-accused convicted on her plea of guilty of murder - The co-accused who pleaded guilty gave evidence as a State witness at the trial - Whether the trial judge misdirected the jury on s 8 of the Criminal Code (WA) - Whether the trial judge misdirected the jury in relation to the evidence of the co-accused who pleaded guilty and was a State witness or whether his Honour failed to give the jury an appropriate warning in relation to that witness and her evidence - Whether the trial judge failed adequately and fairly to put the defence case of two of the co-accused before the jury - Whether the trial judge erred in failing to order a separate trial of one of the co-accused, alternatively whether his Honour failed adequately to direct the jury to protect that co-accused from prejudice arising from hearsay statements admissible only against another co-accused - Whether the verdict of guilty against one of the co-accused was unreasonable or could not be supported having regard to the evidence

Criminal law - Appeals against sentence - All of the appellants sentenced to life imprisonment with minimum non-parole periods - Whether the trial judge made errors of fact in sentencing the appellants - Whether the trial judge failed to take into account relevant sentencing factors - Whether any of the minimum non-parole periods were manifestly excessive

Criminal Appeals Act 2004 (WA), s 30(3)(a), s 31(4)(a)

Criminal Procedure Act 2004 (WA), s 112, s 133

Evidence Act 1906 (WA), s 50

Sentencing Act 1995 (WA), s 6, s 7, s 8, s 90

Angliss v The State of Western Australia [2015] WASCA 8

Atherden v The State of Western Australia [2010] WASCA 33

Austic v The State of Western Australia [2010] WASCA 110

Azarian v The State of Western Australia [2007] WASCA 249; (2007) 178 A Crim R 19

Bugmy v The Queen [1990] HCA 18; (1990) 169 CLR 525

Campbell v The State of Western Australia [2016] WASCA 156; (2016) 50 WAR 331

Carr v The Queen [1988] HCA 47; (1988) 165 CLR 314

Carroll v The State of Western Australia [2004] WASCA 254

Cecez v The State of Western Australia [2007] WASCA 260; (2007) 35 WAR 344

Cheung v The Queen [2001] HCA 67; (2001) 209 CLR 1

Cockram v The State of Western Australia [2011] WASCA 179

Cooper v The State of Western Australia [2010] WASCA 190

Corbett v The State of Western Australia [2016] WASCA 97

Crampton v The Queen [2000] HCA 60; (2000) 206 CLR 161

Crossland v The State of Western Australia [2016] WASCA 93

Darkan v The Queen [2006] HCA 34; (2006) 227 CLR 373

Deakin v The Queen [1984] HCA 31; (1984) 58 ALJR 367

Director of Public Prosecutions v Faure [1993] VicRp 87; [1993] 2 VR 497

Domican v The Queen [1992] HCA 13; (1992) 173 CLR 555

Evans v The State of Western Australia [2012] WASCA 13

Ferris v The State of Western Australia [2007] WASCA 69

Fleming v The Queen [1998] HCA 68; (1998) 197 CLR 250

Goodwyn v The State of Western Australia [2013] WASCA 141; (2013) 45 WAR 328

Gore v The State of Western Australia [2017] WASCA 163

Johnson v The State of Western Australia [2008] WASCA 164; (2008) 186 A Crim R 531

Johnston v The State of Western Australia [2012] WASCA 18

Jones v The Queen [1997] HCA 12; (1997) 191 CLR 439

Khan v The State of Western Australia [2013] WASCA 193

Koushappis v The State of Western Australia [2007] WASCA 26; (2007) 168 A Crim R 51

Liberato v The Queen [1985] HCA 66; (1985) 159 CLR 507

Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559

Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79

Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665

M v The Queen [1994] HCA 63; (1994) 181 CLR 487

Mack v The State of Western Australia [2014] WASCA 207

Mansfield v The State of Western Australia [2017] WASCA 178; (2017) 52 WAR 233

Marchesano v The State of Western Australia [2017] WASCA 177; (2017) 52 WAR 176

McIntosh v The State of Western Australia [2017] WASCA 45

Moloney v The State of Western Australia [2006] WASCA 193

Morris v The Queen [1987] HCA 50; (1987) 163 CLR 454

Pedersen v The State of Western Australia [2010] WASCA 175

Pezzino v The State of Western Australia [2006] WASCA 131

Power v The Queen [1974] HCA 26; (1974) 131 CLR 623

Prestidge v The State of Western Australia [2014] WASCA 16

R v Anderson [2001] NSWCCA 488; (2001) 127 A Crim R 116

R v Baden-Clay [2016] HCA 35; (2016) 258 CLR 308

R v Barlow [1997] HCA 19; (1997) 188 CLR 1

R v Hillier [2007] HCA 13; (2007) 228 CLR 618

R v Jones [1991] 55 A Crim R 159

R v Keenan [2009] HCA 1; (2009) 236 CLR 397

R v Nguyen [2010] HCA 38; (2010) 242 CLR 491

R v Pham [2004] NSWCCA 190

Rosewood v The State of Western Australia [2014] WASCA 21

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

Russell v The State of Western Australia [2011] WASCA 246; (2011) 214 A Crim R 326

Salmon v The Queen [2001] WASCA 270

Santos v The State of Western Australia [No 2] [2013] WASCA 39

Silva v The State of Western Australia [2013] WASCA 278

SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400

Stinson v The State of Western Australia [2014] WASCA 72

Stuart v The Queen [1974] HCA 54; (1974) 134 CLR 426

Taylor v The State of Western Australia [2016] WASCA 210

The State of Western Australia v Churchill [2015] WASCA 257

The State of Western Australia v HAR [2015] WASCSR 70

The State of Western Australia v Lee [2013] WASCA 246

The State of Western Australia v O'Kane [2011] WASCA 24

The State of Western Australia v Silich [2011] WASCA 135; (2011) 43 WAR 285

The State of Western Australia v Stoeski [2016] WASCA 16

The State of Western Australia v Tolliday [2004] WASC 231

Tully v The Queen [2006] HCA 56; (2006) 230 CLR 234

Turner v The State of Western Australia [2014] WASCA 214

Walsh v The State of Western Australia [2011] WASCA 119

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

White v The Queen [2006] WASCA 62

Wongawol v The State of Western Australia [2011] WASCA 222; (2011) 42 WAR 91

Zwerus v The State of Western Australia [2015] WASCA 174

1. The appellants in these appeals were jointly charged on indictment that on or about 2 April 2015, at Hilbert and elsewhere, they murdered Travis Mills, contrary to s 279 of the Criminal Code (WA) (the Code).
2. The appellant in CACR 196 of 2016 (Justine Campbell) pleaded guilty to Mr Mills' murder.
3. The appellant in CACR 187 and 188 of 2016 (Joanne Ruthsalz), the appellant in CACR 189 and 190 of 2016 (Seleena Ruthsalz), the appellant in CACR 191 of 2016 (Darren Campbell) and the appellant in CACR 192 and 193 of 2016 (Darryl Newton) pleaded not guilty to Mr Mills' murder.
4. On 12 September 2016, after an eight-week trial in the Supreme Court before Hall J and a jury, Joanne Ruthsalz, Seleena Ruthsalz, Darren Campbell and Darryl Newton were convicted of Mr Mills' murder.
5. On 11 November 2016, the appellants were sentenced as follows:

(a) Joanne Ruthsalz: life imprisonment with a minimum non-parole period of 24 years;

(b) Seleena Ruthsalz: life imprisonment with a minimum non-parole period of 21 years;

(c) Darren Campbell: life imprisonment with a minimum non-parole period of 24 years;

(d) Darryl Newton: life imprisonment with a minimum non-parole period of 24 years; and

(e) Justine Campbell: life imprisonment with a minimum non-parole period of 13 years.

1. Joanne Ruthsalz, Seleena Ruthsalz, Darren Campbell and Darryl Newton have appealed against conviction.
2. Joanne Ruthsalz, Seleena Ruthsalz, Darryl Newton and Justine Campbell have appealed against sentence.
3. We would dismiss all of the appeals. Our reasons are as follows.

The facts and circumstances of the offending as found by the trial judge in his sentencing remarks

1. The facts and circumstances of the offending, as found by the trial judge in his sentencing remarks, were as follows. Those facts and circumstances reflect, in general, the State's case at the trial.
2. In April 2015, Travis Mills was aged 30. He was in a de facto relationship with Seleena Ruthsalz. They had a young child, Ruby. Travis Mills, Seleena Ruthsalz and Ruby lived in a house at Poad Street, Seville Grove.
3. As at April 2015 and during the immediately preceding months, there were tensions in Travis Mills and Seleena Ruthsalz's relationship. A major source of dispute between them was Seleena Ruthsalz's mother, Joanne Ruthsalz.
4. Travis Mills and Joanne Ruthsalz disliked each other. Travis Mills believed Joanne Ruthsalz was interfering in his life with Seleena Ruthsalz. He also believed Joanne Ruthsalz's house was unclean and that she dealt in drugs. He did not want Ruby to be taken to Joanne Ruthsalz's house. Joanne Ruthsalz believed Travis Mills was preventing her from seeing her daughter, Seleena Ruthsalz, and from having a relationship with her granddaughter, Ruby.
5. During the four-month period preceding 3 April 2015, Joanne Ruthsalz was overheard saying she wanted 'to get Travis sorted' and she wanted to kill him [7]. Those statements were made in anger and were not taken seriously by the person who heard them.
6. In late 2014, Joanne Ruthsalz renewed her acquaintance with Justine Campbell, who was married to Darren Campbell. At the time Justine Campbell and Darren Campbell were operating a business known as Tru Bloomin Hydroponics in Bibra Lake. The business sold hydroponic equipment. Justine Campbell and Darren Campbell also sold cannabis. In late January 2015, Joanne Ruthsalz told Justine Campbell that Travis Mills did not like her, that he was 'a bit of an arsehole' and that he and Seleena Ruthsalz fought. At the time, Justine Campbell had not met Travis Mills or Seleena Ruthsalz, but they came to the Bibra Lake shop a few days later.
7. When Justine Campbell met Travis Mills and Seleena Ruthsalz at the shop, Justine Campbell formed the view that Seleena Ruthsalz was nervous and was careful about what she said. Justine Campbell also formed the view that Travis Mills was physically abusing Seleena Ruthsalz. Justine Campbell was especially sensitive to that possibility because she had suffered significant abuse from a partner some years earlier.
8. A day or two later, Joanne Ruthsalz told Justine Campbell that Travis Mills verbally and physically abuses Seleena Ruthsalz and that Joanne Ruthsalz would be pleased if someone would 'get him away'. Justine Campbell suggested that Joanne Ruthsalz's partner could speak to Travis Mills. Joanne Ruthsalz rejected the suggestion because they were 'too close' [10].
9. Joanne Ruthsalz told Justine Campbell that Travis Mills and Seleena Ruthsalz were attempting to grow cannabis at home and needed assistance. Joanne Ruthsalz asked Justine Campbell to 'do a house call' on Travis Mills and Seleena Ruthsalz.
10. In February 2015, Justine Campbell went to the home of Travis Mills and Seleena Ruthsalz, as requested. Justine Campbell formed the impression that Travis Mills did not like her. That impression was confirmed later by Seleena Ruthsalz. The confirmation reinforced Justine Campbell's negative view of Travis Mills. Justine Campbell came to believe that Seleena Ruthsalz was 'at risk' and 'something needed to be done'.
11. A day or two later, Justine Campbell went to Joanne Ruthsalz's house. Joanne Ruthsalz, her partner and Seleena Ruthsalz were present. Justine Campbell spoke separately to Seleena Ruthsalz and asked her why she was staying with Travis Mills. Seleena Ruthsalz told Justine Campbell that Travis Mills would denigrate and hurt her. She had not disclosed everything to her mother because her mother had experienced 'the same thing herself'. Seleena Ruthsalz claimed she could not leave Travis Mills because she feared she would lose Ruby or that Travis Mills would kill her. She added that she was scared to return home because she did not know 'what sort of mood he would be in'. The trial judge noted in his sentencing remarks that what Seleena Ruthsalz told Justine Campbell was 'at the very least exaggerated, if not completely untrue' [12].
12. Next, there was a discussion between Joanne Ruthsalz and her partner and Justine Campbell. Justine Campbell asked Joanne Ruthsalz whether she knew someone who could give Travis Mills 'a clip around the ears' or 'a kick in the head to make him wake up and see what he had'. Joanne Ruthsalz's partner said something more than that needed to be done. Joanne Ruthsalz then said 'oh, for fuck's sake, we need to kill the cunt'. She suggested the incident could be made to appear like a carjacking. The discussion was left on the basis that Justine Campbell would endeavour to locate someone who might be able to assist them.
13. Some months earlier, Darryl Newton had gone to Justine Campbell and Darren Campbell's shop in Bibra Lake. He recognised Justine Campbell as a friend from his youth. He re-introduced himself. A friendship resulted between Darryl Newton, Darryl Newton's wife (Narelle Newton), Justine Campbell and Darren Campbell.
14. In about early March 2015, Justine Campbell spoke to Darryl Newton about Seleena Ruthsalz. Justine Campbell told Darryl Newton that she had a friend who was being beaten by her partner and who would not permit her to leave the relationship. Justine Campbell suggested that the partner (that is, Travis Mills) should get 'a touch along', 'a kick in the head' or a broken arm or leg 'to knock some sense into him'. Darryl Newton said he could assist, but nothing more definite was arranged at that time.
15. A few days later, Justine Campbell told Darryl Newton not to inform her husband, Darren Campbell, about what Justine Campbell had said previously about her friend. However, at some stage, Darren Campbell noticed a change in Justine Campbell's mood and asked her what was wrong. Justine Campbell broke down and revealed what she believed about Seleena Ruthsalz.
16. At about this time, Justine Campbell was visiting Joanne Ruthsalz at her home on almost a daily basis. On those occasions, Joanne Ruthsalz would press Justine Campbell for information about Travis Mills and ask Justine Campbell whether she could help her. By this inquiry, Joanne Ruthsalz meant assisting her in having Travis Mills killed. Justine Campbell responded that matters would resolve themselves and 'to just let it be'. However, Joanne Ruthsalz told Justine Campbell that Travis Mills had begun hurting Ruby. She said he was holding Ruby under the shower until she gasped for air and he was head-butting her. Joanne Ruthsalz's intention, in saying those things, was to pressure Justine Campbell to assist in having Travis Mills killed. The tactic worked because Justine Campbell saw the alleged abuse of Ruby as 'the last straw' and decided that she would 'get it sorted'.
17. Shortly afterwards, Darryl Newton came into Justine Campbell and Darren Campbell's shop again. Justine Campbell recounted to Darryl Newton Joanne Ruthsalz's assertions that Travis Mills was abusing Ruby. Darryl Newton said words to the effect that 'hurting the kid is not on' and that 'the guy needed to be gone'.
18. At about this time, Seleena Ruthsalz inquired of Justine Campbell 'when it was going to happen'. Justine Campbell told her it was better that she not know and 'to just keep herself safe'. The trial judge was satisfied that, either at this stage or later, Seleena Ruthsalz 'knew that something was planned and that it involved doing violence to Travis [Mills]' [19].
19. A week before Easter 2015, Joanne Ruthsalz told Justine Campbell that Travis Mills' mother had 'packed up' Ruby's room, Seleena Ruthsalz had not been invited to a party for Ruby at Mrs Mills' house and Travis Mills was going to take Ruby to Queensland. By those statements, Joanne Ruthsalz intended to convey to Justine Campbell that 'the need to deal with Travis [Mills] was now urgent ... [and] that it needed to be done that week'. Justine Campbell agreed 'to sort something out' [20].
20. At about this time, Darryl Newton spoke with Darren Campbell at Justine Campbell and Darren Campbell's shop. Justine Campbell, who was also at the shop, heard raised voices. After Darryl Newton departed, Darren Campbell told Justine Campbell that Darryl Newton had 'just involved [him]'. Darren Campbell added, '[a]pparently [Darryl Newton's] mate that he was going to use to help him can't go and now you've got me involved'. Justine Campbell then repeated to Darren Campbell what she had been told by Joanne Ruthsalz about Travis Mills hurting Seleena Ruthsalz and Ruby and about Travis Mills taking Ruby to Queensland. Darren Campbell was angry that he had been drawn into the plan. Nevertheless, from that point he became an active participant.
21. The trial judge said that there was no direct evidence of what the plan involved, but a number of inferences could be drawn from the evidence. The plan was for Seleena Ruthsalz to ensure that Travis Mills was at home alone. She would visit her mother, Joanne Ruthsalz, at her house. Seleena Ruthsalz would provide information to enable Darren Campbell and Darryl Newton to identify Travis Mills. The keys to their house would be given to Justine Campbell who would in turn give them to Darren Campbell and Darryl Newton. Darren Campbell and Darryl Newton would then travel together in a car to Seville Grove and surprise Travis Mills in his home. He would be killed and his body disposed of. The plan developed over several days.
22. Justine Campbell obtained from Joanne Ruthsalz information about Travis Mills including a photograph of him and a description of his car. The information was given to Darren Campbell and Darryl Newton.
23. On 31 March 2015 (that is, two nights before Travis Mills was killed), Darren Campbell and Darryl Newton travelled together in Darryl Newton's car to Seville Grove. They did not travel in Darren Campbell's car because they were concerned that Travis Mills might recognise it. The arrangements were made by text messages. Justine Campbell acted as an intermediary in relation to some of the messages. In the early hours of the morning of 1 April 2015, Darren Campbell and Darryl Newton drove past Travis Mills' house on numerous occasions. The trial judge found that this was a 'scoping exercise' to familiarise themselves with the house and its surroundings in preparation for the intended killing two days later.
24. Late in the afternoon of 1 April 2015, Seleena Ruthsalz and Travis Mills purchased a trampoline for Ruby's birthday on 3 April 2015. On 2 April 2015, Travis Mills went to work. At 3.00 pm he collected the trampoline from a store in Armadale. He took the trampoline to his home and returned to work. He arrived home again at about 4.40 pm.
25. On the afternoon of 2 April 2015, there were telephone calls and text messages between Justine Campbell and Joanne Ruthsalz. The content of those communications is unknown. However, the trial judge found that it was significant that during this time Joanne Ruthsalz was using a mobile telephone which she had subscribed for in a false name. His Honour was satisfied that the only reasonable inference was that the communications related to arrangements for that evening, including ensuring Travis Mills was at home and Seleena Ruthsalz and Ruby were not.
26. At 6.30 pm on 2 April 2015, Seleena Ruthsalz and Ruby departed from their Seville Grove home. Travis Mills remained at home. He constructed the trampoline. Immediately after she departed, Seleena Ruthsalz telephoned Joanne Ruthsalz. The purpose of the communication was for Seleena Ruthsalz to tell Joanne Ruthsalz that she had left home and was travelling to her house. Seleena Ruthsalz had falsely informed Travis Mills that she was visiting a friend. That fabrication was later elaborated upon in text messages to Travis Mills in order to explain to him why she had not returned home. Seleena Ruthsalz knew it was important that Travis Mills remain at home and she 'played [her] part' in ensuring that he did. After arriving at Joanne Ruthsalz's house, Seleena Ruthsalz stayed there until after midnight.
27. Some time after 7.00 pm on 2 April 2015, Justine Campbell also arrived at Joanne Ruthsalz's house. She collected the keys to the Seville Grove home from Seleena Ruthsalz. Justine Campbell told Seleena Ruthsalz that she was not to leave Joanne Ruthsalz's house until she had received a text message telling her that it was safe for her to return home.
28. The purpose of Justine Campbell obtaining the keys to the Seville Grove home was known to all of the offenders; namely, to enable Darren Campbell and Darryl Newton to obtain access to the home and surprise Travis Mills. That is what happened.
29. After Justine Campbell gave them the keys, Darren Campbell and Darryl Newton travelled together by car once again to the Seville Grove home. They commenced the journey at about 9.30 pm. First, they drove to a service station in Beeliar. At the service station Darryl Newton filled a container with petrol. Later, that fuel was used to burn Travis Mills' car. The purchase of the petrol was consistent with there being a plan then in place to kill Travis Mills and burn his body in the car. The idea was to make the killing appear to be a crime unconnected to Joanne Ruthsalz and Seleena Ruthsalz, both of whom would have an alibi. At some time between 10.15 pm and 11.40 pm, Darren Campbell and Darryl Newton arrived at the Seville Grove home and attacked Travis Mills. Travis Mills sent his last text message at 10.15 pm and his car was seen leaving the area at 11.40 pm.
30. The trial judge found that the precise events at the house could not be determined, but a number of inferences could be drawn. Darren Campbell and Darryl Newton entered the Seville Grove home and attacked Travis Mills. It was highly likely that Darren Campbell and Darryl Newton were armed and that Travis Mills was surprised. Travis Mills suffered significant injuries. That conclusion was supported by evidence as to the blood spatter at the house. Travis Mills was able to put up some defence because he managed to stab Darren Campbell in the leg. The injury was, however, superficial. Travis Mills was then either forced or carried into the boot of his car. At that point he was very likely to have been severely injured, but he was not dead.
31. Next, either Darren Campbell or Darryl Newton drove Travis Mills' car and the other drove Darryl Newton's car to a new housing development in Hilbert. At that location one or both of Darren Campbell and Darryl Newton doused Travis Mills' car with the petrol that had been purchased earlier at the Beeliar service station and set the car on fire.
32. The burning car was seen by a member of the public who called the emergency services. Firefighters attended and extinguished the fire. They noticed what appeared to be a body in the boot and contacted the police.
33. A post-mortem examination revealed that Travis Mills had suffered multiple fractures, but they could have been caused by the fire. His body was so badly burnt that it was impossible to say whether he had suffered any soft tissue injuries. But the pathologist, Dr Jodie White, was able to say that Travis Mills was breathing when the fire was ignited. It was unknown whether he was conscious at that time.
34. Telephone and text communications between the offenders on the night in question showed they remained in close contact. Seleena Ruthsalz left Joanne Ruthsalz's house at about midnight. Shortly after, Darren Campbell telephoned Justine Campbell and told her that Seleena Ruthsalz should not return to her home alone as the house was a mess and needed to be cleaned. Justine Campbell relayed this message to Seleena Ruthsalz who stopped her car by the side of the road.
35. Next, Joanne Ruthsalz drove her car and met Seleena Ruthsalz by the side of the road. They then went to the Seville Grove home. On arrival, they found large quantities of blood on the floor including on a black rug in the kitchen area. Joanne Ruthsalz did most of the cleaning. She placed a number of bloodied cloths and the rug into her car. Later, she disposed of some of the items and asked a friend to dispose of plastic bags containing others.
36. Seleena Ruthsalz then sent text messages to Travis Mills as if he were still alive. She feigned anger that he was not at home.
37. When Darren Campbell arrived at his home he had a bleeding wound on his leg. He told Justine Campbell that Travis Mills had been startled when he and Darryl Newton had arrived at the Seville Grove home. Travis Mills had stabbed him. Darren Campbell also told Justine Campbell that 'Darryl went ballistic with the baseball bat'. Darren Campbell also asserted that it was Darryl Newton who had placed Travis Mills into the boot of Travis Mills' car and had driven that car. Darren Campbell further asserted that it was Darryl Newton who had set Travis Mills' car on fire. At the trial Justine Campbell's evidence as to that conversation was, of course, evidence against Darren Campbell, but not against Darryl Newton. The trial judge accepted that Darren Campbell had made the statements attributed to him by Justine Campbell. However, his Honour did not accept that they were necessarily entirely truthful as to Darren Campbell's involvement in the offending.

1. Dr White gave evidence at the trial that her post-mortem examination of Travis Mills revealed that the cause of his death was 'smoke inhalation with incineration' (ts 754).

1. At the trial Joanne Ruthsalz and Darryl Newton gave evidence. Seleena Ruthsalz and Darren Campbell did not give evidence.

Overview of the defences of Joanne Ruthsalz, Seleena Ruthsalz, Darren Campbell and Darryl Newton at the trial

1. At the trial, Joanne Ruthsalz's defence was that she had made a plan with Justine Campbell to have the Seville Grove home burgled and to have Travis Mills assaulted, but she did not intend that he should be killed or suffer a life-endangering injury. She had merely counselled or procured Justine Campbell and others to commit a burglary at the Seville Grove home and to assault Travis Mills. Joanne Ruthsalz admitted in her evidence that she had cleaned up blood at the Seville Grove home, but she thought that some other person than Travis Mills had been injured. At the time she did not know what had happened to Travis Mills.
2. At the trial, Seleena Ruthsalz's defence was that she assisted others to commit a burglary at the Seville Grove home and to assault Travis Mills. However, she did not intend that he should be killed or receive a life-endangering injury. What happened to Travis Mills was unexpected by her and, from her perspective, was an unlikely occurrence. If there was a plan to kill Travis Mills or cause him a life-endangering injury, Seleena Ruthsalz was not part of it.
3. At the trial, Darren Campbell's defence was that he had nothing to do with the murder of Travis Mills.
4. At the trial, Darryl Newton's defence was that he unknowingly did acts which assisted in Travis Mills' killing. Darryl Newton gave evidence that he thought he was assisting Darren Campbell to make a fraudulent insurance claim by setting a car on fire. He admitted being with Darren Campbell on the night of the killing. He merely followed Darren Campbell's directions. Those directions included purchasing petrol at the service station in Beeliar. Darryl Newton gave evidence that he drove Darren Campbell in Darryl Newton's car to the Seville Grove home for the purpose of collecting the car that was to be set on fire. Darren Campbell alighted from the vehicle and Darryl Newton waited in his car further down the street. On Darryl Newton's case, Darren Campbell committed the murder on his own, including attacking Travis Mills in the Seville Grove home and placing him in the boot of Travis Mills' car. Darryl Newton did not know that anyone was in the car when it was set alight. Darryl Newton had never met or heard of Travis Mills, Joanne Ruthsalz or Seleena Ruthsalz before he was arrested by the police and interviewed.

Joanne Ruthsalz's appeal against conviction: grounds of appeal

1. Originally, Joanne Ruthsalz relied on four grounds of appeal. Later, her counsel abandoned grounds 1 and 4.
2. Ground 2 alleges that the verdict of guilty on which the conviction is based should be set aside because, having regard to the evidence, it is unreasonable or cannot be supported.
3. There are two particulars of ground 2.
4. Particular 2.1 asserts, in relation to the State's reliance on s 8 of the Code, that 'the evidence did not support a finding beyond reasonable doubt that, objectively, death by smoke inhalation with incineration was a probable consequence of the common unlawful plan'.
5. Particular 2.2 asserts, in relation to the State's reliance on s 7 of the Code, that 'the evidence did not support a finding beyond reasonable doubt that [Joanne Ruthsalz] intended to aid the principal offender(s) in the killing of the deceased at the time he was killed'.
6. Ground 3 alleges that the trial judge made a wrong decision on a question of law, alternatively a miscarriage of justice occurred, in that his Honour misdirected the jury about the appellant's criminal liability under s 8 of the Code.
7. There are two particulars of ground 3.
8. Particular 3.1 asserts that s 8 of the Code 'could not operate to render [Joanne Ruthsalz] criminally responsible for the offence of murder unless it could be shown that the deceased being burnt alive in the boot of the car was a probable consequence of the common unlawful plan'.
9. Particular 3.2 asserts that '[t]he scope of the common unlawful plan [Joanne Ruthsalz] was said to be a party to could not reasonably be said to extend to a plan whereby it was a probable consequence that death would be caused by the incidental burning of the deceased alive in the boot of his car'.
10. On 1 April 2017, Mazza JA granted leave to appeal on grounds 2 and 3.
11. It is convenient to consider ground 3 before ground 2.

Joanne Ruthsalz's appeal against conviction: ground 3: counsel for Joanne Ruthsalz's submissions

1. Counsel for Joanne Ruthsalz noted that Dr White had given evidence that the cause of Travis Mills' death was smoke inhalation combined with incineration.
2. At the trial, defence counsel for Joanne Ruthsalz contended in his closing address that Joanne Ruthsalz did not intend what had happened to Travis Mills. She had no knowledge that Darren Campbell and Darryl Newton would purchase petrol. She also had no knowledge that Darren Campbell and Darryl Newton would put Mr Mills in the boot of his car, drive the car to a housing estate and use the petrol to set the car on fire while Travis Mills was alive in the boot (ts 2973).
3. On appeal, counsel for Joanne Ruthsalz submitted that:

(a) The plan to which Joanne Ruthsalz was a party was not a significant cause of Travis Mills' death.

(b) It was not a probable consequence of the plan to which Joanne Ruthsalz was a party that 'death would actually be caused by a plan involving a completely different (in type and nature) serious assault', namely Travis Mills being put in the boot of his car and burnt alive at a remote location.

(c) Further, Joanne Ruthsalz did not know that Mr Campbell and Mr Newton had purchased petrol which was then used to ignite the car.

(d) The trial judge should have 'clearly directed the jury to consider, when assessing [Joanne Ruthsalz's] culpability under s 8, whether [Darren Campbell] and [Darryl Newton] had acted independently of and outside of the common intent, such as to render [Joanne Ruthsalz] not guilty'.

Joanne Ruthsalz's appeal against conviction: ground 3: its merits

1. Section 8 of the Code provides:
   1. Offence committed in prosecution of common purpose

(1) When 2 or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of such purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of such purpose, each of them is deemed to have committed the offence.

(2) A person is not deemed under subsection (1) to have committed the offence if, before the commission of the offence, the person -

(a) withdrew from the prosecution of the unlawful purpose; and

(b) by words or conduct, communicated the withdrawal to each other person with whom the common intention to prosecute the unlawful purpose was formed; and

(c) having so withdrawn, took all reasonable steps to prevent the commission of the offence.

1. Section 8(1) operates separately from, and in addition to, s 7(a), s 7(b), s 7(c) and s 7(d) of the Code.
2. Section 8(1) requires proof of three matters. First, a common intention to prosecute an unlawful purpose. Secondly, that an offence was committed in the prosecution of the common unlawful purpose. Thirdly, that the offence actually committed was of such a nature that its commission was a probable consequence of the prosecution of the common unlawful purpose.
3. In R v Keenan,[1] Kiefel J (Hayne J relevantly agreeing and Heydon & Crennan JJ agreeing) said in relation to the Queensland counterpart of s 8:

The purpose of s 8 is to extend the criminal responsibility of the parties to a common purpose to an offence other than that which was intended to be committed. The section limits the extension of that responsibility by requiring that the nature of the offence committed be such as to be a probable consequence of the common purpose. The test of probable consequence reflects the historical approach of the common law. The foundations for provisions such as s 8 may be traced to Sir Matthew Hale (Darkan v The Queen [2006] HCA 34; (2006) 227 CLR 373 at 383 [29] per Gleeson CJ, Gummow, Heydon and Crennan JJ, referring to Hale_, Historia Placitorum Coronae_ (1736), vol 1, p 617) and reference to it is made in Foster's Crown Law (Foster, A Report of Some Proceedings on the Commission for the Trial of the Rebels in the Year 1746, in the County of Surry; and of Other Crown Cases, 3rd ed (1809), p 369) [102].

See also R v Barlow;[2] Darkan v The Queen.[3]

1. Kiefel J pointed out that the ultimate question which s 8(1) poses (namely, whether the offence actually committed was of such a nature as to be a probable consequence of the prosecution of the common unlawful purpose) is directed to the connection between the offence and the common purpose [115]. Her Honour added:

It is that connection which is the basis for criminal responsibility. The section's test for connection does not suggest as necessary an approach which imports the act involved in the offence into the finding of common purpose [115].

1. Kiefel J noted that the available inferences as to the common unlawful purpose in a particular case will depend upon the evidence, viewed as a whole [117]. Her Honour then said:

Section 8 does not require the connection, between the offence actually committed and the common purpose to be prosecuted, to be established at the point when the common purpose is determined as a fact. It provides for the requisite connection to be determined by the application of the test, whether the offence was the probable consequence of the common purpose, after that purpose has been ascertained [117].

1. Kiefel J made a number of observations, in the context of the common intention to prosecute an unlawful purpose, about the nature and extent of any physical harm to be inflicted on a victim and the means by which the physical harm is to be inflicted:

It is not to be expected that every plan involving the infliction of physical harm will be detailed and include the means by which it is to be inflicted. However it may be possible to infer what level of harm is intended and from that point to determine whether the actual offence committed was a probable consequence of a purpose so described.

An inference about the level of harm involved in the common purpose to be prosecuted may be drawn from the general terms in which an intended assault is described, the motive for the attack and the objective sought to be achieved, amongst other factors ...

Where a method by which physical harm is to be inflicted has been discussed, or may be inferred as intended, it does not follow that the use of other means will prevent a person being held criminally responsible. In some cases the means intended to be used may permit an inference as to the level of harm intended. An offence involving such harm may be a probable consequence of such purpose whatever means came to be used. It may be otherwise where the intended means suggest no serious harm was intended and the offence committed well exceeds such a purpose [119] - [121].

1. In Keenan, Hayne J (Heydon & Crennan JJ agreeing) held that when determining, for the purposes of s 8, the connection between the common unlawful purpose and the offence actually committed, the question for the jury is whether the conduct constituting the offence actually committed was an offence of such a nature that its commission was a probable consequence of the prosecution of the common purpose and not whether the conduct in question was itself a probable consequence. His Honour said that the Court of Appeal of Queensland erred when it stated:

To convict [the respondent] under s 8, the jury had to be satisfied beyond reasonable doubt that he, and either or both [of the co-accused], formed a common intention to unlawfully cause [the victim] serious harm; and that [the shooter's] act of shooting resulting in grievous bodily harm was a probable consequence of the prosecution of their joint common intention (emphasis added) [84].

1. The test under s 8 is not to be decided by reference to abstract concepts. The jury must consider fully and in detail what was the common unlawful purpose and what its prosecution was intended to entail and what was the nature of the offence actually committed. The jury must then decide whether that actual offence was 'of such a nature' that its commission was a probable consequence of the prosecution of that common unlawful purpose. See Stuart v The Queen.[4]
2. The question whether the offence actually committed was of such a nature that its commission was 'a probable consequence' of the prosecution of the common unlawful purpose is to be determined objectively. Criminal responsibility does not depend upon the foresight of the parties to the relevant common unlawful purpose. It is irrelevant whether a party was aware that the offence actually committed was of such a nature that its commission was 'a probable consequence'. See Stuart;[5] Keenan.[6]
3. Section 8 does not require that the offence actually committed was 'a probable consequence' of the prosecution of the common unlawful purpose. That approach would give no work to the expression 'of such a nature'. See Keenan.[7]
4. Section 8 does not require that the precise means by which the offence charged was committed must have been:

(a) a probable consequence of the prosecution of the common unlawful purpose; or

(b) known, predicted or foreseen by an accused who was a party to the common unlawful purpose.

For example, where the offence charged is murder, the State is not required to prove that the precise means employed to cause the victim's death were within the contemplation of the accused.

1. In the present case, there were two critical questions.
2. First, did Joanne Ruthsalz form a common intention with her co-accused to prosecute an unlawful purpose, namely to seriously assault Travis Mills?
3. Secondly, if so, was Travis Mills' unlawful killing (either by intentionally causing his death or by intentionally causing him a bodily injury of such a nature as to endanger, or be likely to endanger, his life) an offence of such a nature that its commission was a probable consequence of the prosecution of such unlawful purpose?
4. The second question was not whether the specific acts of beating Travis Mills and the specific act of incinerating him were a probable consequence of the prosecution of the common unlawful purpose, because posing the question in that manner would fail to give effect to the words 'of such a nature' in s 8(1).
5. Also, the second question did not involve a consideration of whether Joanne Ruthsalz had known, predicted or foreseen that the specific acts of beating Travis Mills or the specific act of incinerating him would occur, because that would involve substituting a subjective standard in determining whether the offence actually committed was of such a nature that its commission was 'a probable consequence' of the prosecution of the common unlawful purpose.
6. The first and second questions required the jury to examine what inferences, if any, should be drawn from the facts which the jury found to be established by the evidence. In particular, the jury had to examine whether the State had proven beyond reasonable doubt each of the three matters embodied within s 8(1).
7. Particular 3.1 of ground 3 is without merit. The proposition embodied in particular 3.1, namely that s 8 did not render Joanne Ruthsalz criminally responsible for Travis Mills' murder unless the State proved that Travis Mills being burnt alive in the boot of his car was a probable consequence of the common unlawful plan, is fundamentally misconceived.
8. Particular 3.2 of ground 3 is also without merit. The proposition embodied in particular 3.2, namely that s 8 does not render Joanne Ruthsalz criminally responsible for Travis Mills' murder because it was not a probable consequence of the prosecution of the common unlawful purpose to which Joanne Ruthsalz was a party that Travis Mills' death 'would be caused by the incidental burning of the deceased alive in the boot of his car' is also fundamentally misconceived.
9. It should be apparent from our examination of s 8 and the case law that the propositions advanced by counsel for Joanne Ruthsalz are inconsistent with the principles enunciated in Stuart and Keenan.
10. Ground 3 of Joanne Ruthsalz's appeal against conviction is without merit.

Joanne Ruthsalz's appeal against conviction: ground 2

1. At the hearing of the appeals, counsel for Joanne Ruthsalz conceded (properly, in our opinion) that if ground 3 of Joanne Ruthsalz's appeal against conviction failed then ground 2 of her appeal against conviction must also fail (ts 59 - 62).
2. Ground 2 of Joanne Ruthsalz's appeal against conviction is without merit.

Joanne Ruthsalz's appeal against conviction: conclusion

1. Joanne Ruthsalz's appeal against conviction must be dismissed.

Seleena Ruthsalz's appeal against conviction

1. Originally, Seleena Ruthsalz relied on three grounds of appeal. Counsel for Seleena Ruthsalz abandoned ground 1. Seleena Ruthsalz's remaining grounds (that is, grounds 2 and 3) are identical to Joanne Ruthsalz's grounds 2 and 3. On 1 April 2017, Mazza JA granted leave to appeal on Seleena Ruthsalz's grounds 2 and 3.
2. Ground 3 of Seleena Ruthsalz's appeal against conviction is without merit. We are of that opinion for the reasons we have given in relation to ground 3 of Joanne Ruthsalz's appeal against conviction.
3. At the hearing of the appeals, counsel for Seleena Ruthsalz conceded (properly, in our opinion) that if ground 3 of Seleena Ruthsalz's appeal against conviction failed then ground 2 of her appeal against conviction must also fail (ts 59 - 62).
4. Ground 2 of Seleena Ruthsalz's appeal against conviction is without merit.
5. Seleena Ruthsalz's appeal against conviction must be dismissed.

Darren Campbell's appeal against conviction: grounds of appeal

1. Darren Campbell relies on two grounds of appeal.
2. Ground 1, as amended at the hearing of the appeal, alleges in effect that the trial judge made a wrong decision on a question of law or alternatively a miscarriage of justice was occasioned by his Honour's failure to direct the jury as to a number of issues which arose on the evidence and which were central to the jury's assessment of Justine Campbell's reliability as a witness.
3. Ground 1 states that Justine Campbell gave evidence at the trial that:

(a) Darren Campbell had confessed to her his involvement in Travis Mills' murder;

(b) Darren Campbell had told her that he had been stabbed in the leg in the course of murdering Travis Mills; and

(c) she had treated a 3 - 4 cm penetrating wound to Darren Campbell's upper right leg, including by the application of gauze to the wound.

1. Ground 1 asserts that the issues which arose on the evidence and which were central to the jury's assessment of Justine Campbell's reliability as a witness were these:

(a) the significance of Justine Campbell's emphatic testimony that [Darren Campbell] had an injury to his right leg (when no evidence of such an injury was observed either in the police photographs, or by Dr Kain);

(b) the significance of the evidence of Dr Kain that an injury to the left leg, when sustained, would (at most) have been 1 cm in length, when assessing the prosecution's claim that Justine Campbell could have been confusing that injury for the 3 - 4 cm injury which she described;

(c) the significance of Dr Kain's evidence about the likely extent of bleeding of the injury which he saw, when compared to Justine Campbell's evidence about the extent of bleeding which she saw;

(d) the importance, or otherwise, of the absence of stitch marks surrounding the scar which Dr [Kain] observed; and

(e) the possibility that Justine Campbell was mistaken about which leg was injured, and the extent of the injury, and the impact which such mistakes might have upon her credibility as a witness on the whole.

1. Ground 2 alleges that his Honour failed adequately to put before the jury the case sought to be made by Darren Campbell at the trial and that the failure occasioned a miscarriage of justice.
2. On 21 August 2017, Mazza JA referred Darren Campbell's application for leave to appeal to the hearing of the appeal.

Darren Campbell's appeal against conviction: ground 1: counsel for Darren Campbell's submissions

1. Counsel for Darren Campbell submitted that Justine Campbell's reliability as a witness, and how it was to be assessed, were central issues for the jury, especially in respect of the State's case against Darren Campbell. If the jury had doubted Justine Campbell's evidence, that doubt might significantly have influenced their verdict in respect of Darren Campbell. Justine Campbell was involved in Travis Mills' murder and had pleaded guilty to his murder. She stood to gain a substantial benefit in her sentencing from giving evidence which implicated her co-accused in the murder. The trial judge had, appropriately, given the jury a warning in relation to that point in the course of giving a more extensive accomplice warning.
2. However, counsel complained that his Honour did not give the jury any specific directions as to the manner in which they should deal with the 'critical matters' set out at [99] above.
3. According to counsel, it was necessary for the trial judge to give the jury 'appropriate assistance' in relation to dealing with those matters, especially as the prosecutor and defence counsel were advancing 'inconsistent positions' in relation to them.
4. Counsel for Darren Campbell argued that his Honour gave the jury 'very little assistance in how to go about determining whether Justine Campbell was a reliable witness'. It was submitted that, given the importance which defence counsel placed on 'the injured leg issue', his Honour was required to explain 'why the matters which the defence raised could be important'.

Darren Campbell's appeal against conviction: ground 1: its merits

1. Justine Campbell was a State witness at the trial. She gave evidence to the effect that she and Joanne Ruthsalz instigated the events which culminated in Travis Mills' murder. Justine Campbell claimed that her motivation was to protect Seleena Ruthsalz and Seleena's daughter, Ruby. Although the initial plan was seriously to assault Travis Mills (and not to kill him), the plan evolved and ultimately she intended that Travis Mills be killed. Justine Campbell said she coordinated the events in question and acted as a go-between in relation to her co-offenders. This included recruiting her husband (Darren Campbell) and Darryl Newton to carry out the murder, and collecting and passing on the keys to the Seville Grove home.
2. Justine Campbell also gave evidence about a conversation she had with Darren Campbell in the bathroom of their home when he returned early in the morning after the murder. They spoke about a wound to his leg, how it had been inflicted and what had happened that night. Justine Campbell said that when Darren Campbell removed his tracksuit pants she saw blood 'all down his leg' (ts 1695). There was a 3 - 4 cm hole in his right thigh. Darren Campbell told her that Travis Mills had picked up a knife and stabbed him in the leg; Darryl Newton then 'went ballistic with the baseball bat' (ts 1696); and he and Darryl Newton had then put Travis Mills in the boot of Travis Mills' car. Darren Campbell and Darryl Newton departed from the Seville Grove home in two cars. Darryl Newton drove Travis Mills' car while Darren Campbell drove Darryl Newton's car. When they stopped, Darryl Newton approached Darryl Newton's car (which had been driven by Darren Campbell) and removed something from the boot. Darryl Newton then ignited the car containing Travis Mills.
3. Justine Campbell also gave evidence that after Darren Campbell had showered at home early in the morning after the murder, she had attempted unsuccessfully to apply butterfly strips to his injured thigh. She had then put gauze on the injury and a large waterproof bandage over the gauze (ts 1700).
4. Although Justine Campbell's evidence was not critical to the State's case, her evidence strengthened it significantly. The prosecutor told the jury during her closing address that even if they rejected Justine Campbell's evidence, the remaining evidence relied upon by the State was sufficient to convict each of the accused. The trial judge directed the jury in his summing up:

But do not make the mistake of thinking that the prosecution case stands or falls on the evidence of Justine Campbell. Even if you rejected her evidence in its entirety, you would still be obliged to consider all of the other evidence to determine whether or not the accused are guilty (ts 3241).

1. At the trial, Darren Campbell was represented by an experienced and competent criminal defence barrister.
2. Defence counsel for Darren Campbell cross-examined Justine Campbell about the conversation she claimed she had with Darren Campbell in the bathroom of their home when he returned early in the morning after the murder. Defence counsel put to Justine Campbell that she and Darren Campbell had had nothing to do with Travis Mills' death. Defence counsel referred to a handwritten note made by Justine Campbell after the events in question in which she asserted that she had 'no idea what actually happened that night' and that upon giving Darryl Newton the keys to the Seville Grove home 'that was it' (ts 1780). Defence counsel put to Justine Campbell that the contents of her handwritten note were true and that the admissions she had made were false. Justine Campbell rejected the propositions put to her by defence counsel. She maintained that her account in evidence-in-chief as to Darren Campbell's injured leg and as to the admissions against interest he had made to her (ts 1779 - 1782).
3. Justine Campbell confirmed in cross-examination that she had endeavoured to apply butterfly strips to Darren Campbell's injured leg and then applied gauze and a 'big' bandage. She did not 'go and get [him]' medical treatment for the injury (ts 1779).
4. Defence counsel for Darren Campbell did not mention, in his cross-examination of Justine Campbell, any of the matters referred to at [99] above which, according to counsel for Darren Campbell in the appeal, should have been the subject of specific directions by his Honour.
5. Although defence counsel for Darryl Newton cross-examined Justine Campbell about the injury to Darren Campbell's leg, the cross-examination was confined to asking her to identify, on a photograph of Darren Campbell taken by the police, where the injury was located (ts 1942 - 1944).
6. Dr Richard Kain was a State witness at the trial. He was called after Justine Campbell had completed her evidence.
7. Dr Kain gave evidence on 26 August 2016. He said that he had examined Darren Campbell two days earlier; that is, on 24 August 2016. He examined both of Darren Campbell's legs.
8. Dr Kain found 'an old ragged scar that [was] V-shaped' on the back of his lower right leg, just below the knee (ts 2153).
9. Dr Kain also found two scars on Darren Campbell's left leg. The first scar was on the upper thigh, about 50 mm below the groin, and was 6 mm in length. It was consistent with a wound having been inflicted by a sharp edge and was at least one year old. When it happened, this injury would have been, at its longest, 9 - 10 mm. It was likely to have been a shallow, superficial wound because the scar was fine, with no evidence of suturing. Normally, superficial injuries do not bleed a lot (ts 2156 - 2158). The second scar was on the inside of the thigh and lower on the leg than the first scar. It was more ragged in appearance than the other scar on this leg. It appeared to have been caused by a laceration, tearing or the application of blunt force. It was at least one year old.
10. Defence counsel for Darren Campbell elicited from Dr Kain, in cross-examination, evidence to the effect that the second scar on the left leg was consistent with Darren Campbell having knocked the leg against a sharp object (for example, the edge of a desk). Defence counsel for Darren Campbell also elicited from Dr Kain, in cross-examination, evidence to the effect that the first scar on the left leg (that is, the scar that was higher on the leg) was consistent with barbed wire having pierced his clothing and having scored (rather than penetrated) the skin (ts 2162 - 2163). Dr Kain confirmed that there was no evidence that sutures had been inserted in the first scar.
11. Dr Kain said in re-examination that the first scar on Darren Campbell's left leg was 'more consistent with a very sharp edge' and with the wound having been caused by a 'sharp knife'. The wound could have been made by a knife with a sharp edge penetrating tracksuit pants if 'enough force' had been used (ts 2166).
12. The prosecutor made submissions in her closing address about Justine Campbell's evidence of her conversation with Darren Campbell. The prosecutor relied upon Justine Campbell's evidence of the conversation as a confession by Darren Campbell and upon her evidence as to the injury to his leg and it having bled as supporting evidence. It was submitted that either of the two scars on Darren Campbell's left leg might have been the injury which Justine Campbell had seen (ts 2950). The prosecutor dealt in substance with each of the matters referred to at [99] above. As to particular (a), see ts 2866 - 2867, 2949 - 2952; as to particular (b), see ts 2949 - 2950; as to particular (c), see ts 2774 - 2775; as to particular (d), see ts 2950 - 2951; and as to particular (e), see ts 2866, 2950.
13. Defence counsel for Darren Campbell made submissions in his closing address about Justine Campbell's evidence of the conversation in question and the significance of her evidence in relation to Darren Campbell's case. Defence counsel made specific reference to each of the matters referred to at [99] above except particular (d). As to particular (a), see ts 3187; as particular (b), see ts 3187; as to particular (c), see ts 3187; and as to particular (e), see ts 3186 - 3189.
14. The trial judge gave the jury detailed and orthodox directions in his summing up about how to assess the truthfulness and reliability of witnesses generally (ts 3229 - 3232, 3248).
15. His Honour referred specifically to Justine Campbell's evidence:

You can assume that anything of relevance in Justine Campbell's police interview or other prior statements that was considered by defence counsel to be materially different from what she said in court was put to her in cross-examination. And you will have the transcript of the whole of her evidence including cross-examination. So it is that evidence that you should have regard to (ts 3232).

1. The trial judge summarised Justine Campbell's evidence. His Honour emphasised, before commencing the summary, that the jury 'should, of course, take into account the cross-examination and whether you accept what she said' (ts 3265).
2. Later, his Honour said:

I had spent time some time [yesterday] going through the evidence that was given by Justine Campbell, in particular ... those parts of her evidence where she discussed or referred to discussions with each of the accused. I told you in that respect that I wasn't going to summarise the whole of her evidence, I was simply going to tell you what it was she said in evidence-in-chief about those conversations.

I didn't summarise the cross-examination or challenge in respect of that evidence. And as I said to you yesterday, you should take into account what was put to her in cross-examination in assessing whether [you] accept what she said in regards to those conversations (ts 3293 - 3294).

1. The trial judge made a number of statements in his summing up concerning the credibility of Justine Campbell and her evidence:

(a) His Honour gave the jury an accomplice warning in which he instructed the jury that they must consider Justine Campbell's evidence carefully before accepting it and that it was important to adopt a cautious approach in relation to a witness who was an accomplice (ts 3240 - 3241).

(b) His Honour recounted the substance of what Joanne Ruthsalz and Darryl Newton had said in evidence about their communications with Justine Campbell and noted that some of their evidence contradicted Justine Campbell's version of events (ts 3294 - 3298).

(c) His Honour mentioned an inconsistency between Justine Campbell's evidence and Narelle Newton's evidence in relation to Justine Campbell's assertion that there was an occasion when she went to Darryl Newton's house, she and Darryl Newton were the only people present 'for about an hour, hour and a half', and that Narelle Newton came home as Justine Campbell was leaving. Narelle Newton's version of events was that there was no occasion when she came home and saw Justine Campbell alone with her husband, Darryl Newton (ts 3268).

(d) His Honour noted that submissions had been made, which the jury should take into account, about Justine Campbell having given different versions as to whether she gave the keys to the Seville Grove home to Darren Campbell or whether she had placed them on a counter (ts 3274).

(e) His Honour reminded the jury that Darryl Newton's evidence contradicted Justine Campbell's evidence about there having been a conversation between Justine Campbell, Darryl Newton and Darren Campbell after Travis Mills' murder concerning Darryl Newton having discarded the sneakers he had been wearing as recorded in CCTV footage taken at the petrol station in Beeliar (ts 3304 - 3305).

(f) His Honour noted a submission made by defence counsel for Joanne Ruthsalz, in his closing address, about Justine Campbell:

[Defence counsel] put it to you that you could not be satisfied that Justine Campbell was a witness of the truth and gave you various reasons why that was the case. He referred to what he said were inconsistencies in her evidence, that she was a drug addict since the age of 13 and had admitted that that could have an effect on her memory which might also make her unreliable (ts 3312).

(g) His Honour noted a submission made by defence counsel for Seleena Ruthsalz, in his closing address, in relation to Justine Campbell:

[Defence counsel] said that she was not a truthful or reliable witness. He described her as an awful woman who sought to hide behind her own abuse by using the phrase 'protection mode', that she was just being manipulative, and that this was simply an attempt by her to seek revenge against Travis Mills for [abuse] she had herself [suffered] at the hands of another man (ts 3313).

(h) His Honour referred to the following contentions made by defence counsel for Seleena Ruthsalz in his closing address:

(i) Justine Campbell was not remorseful and was justifying her position;

(ii) Justine Campbell was manipulative in the events which culminated in Travis Mills' death; and

(iii) Justine Campbell, together with Joanne Ruthsalz, took control and acted 'maybe for [Seleena Ruthsalz] but probably for themselves' (ts 3317 - 3318).

(i) His Honour referred to Justine Campbell's evidence of her conversation with Darren Campbell when she saw the injury to his leg, and observed that this was an example of an out of court statement which was only admissible against Darren Campbell, and that it was:

evidence of something that Justine Campbell says Darren Campbell said after the event. If you accept that evidence and that Darren Campbell said those things, that is evidence against him. Although there is reference to Darryl Newton, it's not evidence against Darryl Newton because it is simply something said by Darren Campbell in an unsworn statement out of court. Of course, you must be satisfied first of all that those things were said which involves accepting the evidence of Justine Campbell in that regard (ts 3300).

1. At the trial, defence counsel for Darren Campbell made submissions to his Honour during and at the conclusion of his Honour's summing up. At the conclusion of the summing up, defence counsel raised two matters.
2. The first matter related to Justine Campbell's evidence. Defence counsel said that 'from our point of view there were significant issues and difficulties with her evidence, none of which have been highlighted by your Honour' and that 'they ought to be to provide balance to Justine Campbell's evidence' (ts 3326). Defence counsel elaborated:

They are the lack of detail about this plan, the statements about going home when the evidence showed that she didn't on the Thursday evening, the failure to recollect significant calls. The admission she says was made by Darren [Campbell] about what happened that night is not safely corroborated by the medical evidence, the additional evidence that she did use the 334 phone to communicate with Darryl [Newton] about the plan, and the use of a number from the directory of the 334 phone rather than using what had been up until then solely used, the correct contact for Justine Campbell (ts 3326).

1. The second matter concerned his Honour's summary and treatment of a conversation referred to by Joanne Ruthsalz in her evidence (ts 3326 - 3327).
2. The trial judge declined to re-direct the jury on the matters raised by defence counsel for Darren Campbell (ts 3330).
3. Defence counsel for Darren Campbell did not request his Honour to give the jury a more general direction to the effect of that asserted in ground 2, namely a redirection that adequately put Darren Campbell's case before the jury.
4. Section 112 of the Criminal Procedure Act 2004 (WA) provides, relevantly, that in a criminal trial before a judge and jury, 'the judge must instruct the jury on the law applicable to the case and may make any observations about the evidence that the judge thinks necessary in the interests of justice'.
5. In Domican v The Queen,[8] Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ held that, in a criminal trial before a judge and jury, the judge is not bound, in his or her summing up, to discuss all the evidence or to analyse all the conflicts in the evidence and, by itself, the failure of a trial judge to undertake that task does not mean that a miscarriage of justice will have occurred (560). Their Honours emphasised, nevertheless, that fairness means that ordinarily the respective cases advanced by the State and the defence must be accurately and fairly put to the jury (561). Their Honours then said:

But that requirement does not oblige the judge to put to the jury every argument put forward by counsel for the accused (R v Lowery [No 3] [1972] VicRp 109; [1972] VR 939, at p 948) ... Whether the trial judge is bound to refer to an evidentiary matter or argument ultimately depends upon whether a reference to that matter or argument is necessary to ensure that the jurors have sufficient knowledge and understanding of the evidence to discharge their duty to determine the case according to the evidence (R v Matthews and Ford [1972] VicRp 1; [1972] VR 3, at pp 15 - 16). Consequently, the conduct of the case necessarily bears on the extent to which the judge is bound to comment on or discuss the evidence (R v Davies and Cody [No 2] [1937] VicLawRp 47; [1937] VLR 226, at pp 236 - 237; R v Melville (1956) 73 WN (NSW) 579). Discussion or comment which is justified or required in one case may be neither required nor justified when a similar case is conducted in a different way (561).

1. In RPS v The Queen,[9] Gaudron ACJ, Gummow, Kirby and Hayne JJ noted that the fundamental task of a judge in a criminal trial is to ensure a fair trial of the accused [41]. Their Honours then elaborated:

That will require the judge to instruct the jury about so much of the law as they need to know in order to dispose of the issues in the case (Alford v Magee [1952] HCA 3; (1952) 85 CLR 437 at 466, per Dixon, Williams, Webb, Fullagar and Kitto JJ). No doubt that will require instructions about the elements of the offence, the burden and standard of proof and the respective functions of judge and jury. Subject to any applicable statutory provisions it will require the judge to identify the issues in the case and to relate the law to those issues (Alford v Magee [1952] HCA 3; (1952) 85 CLR 437 at 466, per Dixon, Williams, Webb, Fullagar and Kitto JJ). It will require the judge to put fairly before the jury the case which the accused makes [41]. (emphasis added)

1. The adequacy of a trial judge's summing up to the jury will depend on all the circumstances of the case. Those circumstances include the manner in which the State and the defence have conducted the trial and the content and length of the addresses by the prosecutor and defence counsel. A trial judge is bound to refer to and explore the evidence only to the extent necessary in order to ensure a fair trial. A summing up will not be inadequate unless there is a real risk that the trial judge's omission or approach has resulted in a miscarriage of justice. See Carroll v The State of Western Australia;[10] Walsh v The State of Western Australia;[11] Pezzino v The State of Western Australia.[12]
2. In the present case, we are satisfied that the nature and extent of the trial judge's directions and comments about the evidence, the State's case and Darren Campbell's defence were sufficient to ensure that Darren Campbell received a fair trial. His Honour's directions and comments ensured that the jury were given sufficient knowledge and understanding of the evidence, the State's case and Darren Campbell's defence to enable them to evaluate the competing cases and to determine the outcome of the trial according to the evidence.
3. His Honour put Darren Campbell's defence fairly and accurately to the jury. His Honour drew the jury's attention to several issues concerning Justine Campbell's credibility.[13] His Honour gave the jury an accomplice warning. His Honour facilitated the jury's evaluation of Justine Campbell's evidence by providing them with the transcript of all of the evidence.
4. It is true that the trial judge did not mention the matters referred to at [99] above. However, it is not reasonably arguable that as a result of the omission the jury were misled in a material respect or the trial was unfair. Also, it is not reasonably arguable that the jury might have returned a different verdict if his Honour had directed their attention to those matters. Darren Campbell's defence counsel mentioned in his closing address all of the matters referred to at [99] above, except particular (d). The matter referred to in particular (d), namely the absence of stitch marks surrounding the scar which Dr Kain observed, was not of any importance because Justine Campbell's evidence was to the effect that the injury she had seen on Darren Campbell's leg had not been sutured. Rather, she had treated the wound by applying gauze and a big bandage.
5. Further, his Honour instructed the jury, shortly after commencing his summing up, that they would no doubt take into account the closing addresses of the prosecutor and defence counsel (ts 3198). Defence counsel for Darren Campbell addressed the jury last. The matters referred to in particulars (a), (b), (c) and (e) at [99] above would have been reasonably fresh in the minds of the jury. His Honour instructed the jury that it was not of any consequence for the jury in carrying out their function that his Honour might refer to some parts of the evidence but not to other parts (ts 3198). His Honour said that he was not endeavouring to suggest to the jury that any parts of the evidence should be ignored (ts 3198). His Honour told the jury that they should not perceive that there was any covert message from him in what he said or did not say about the evidence (ts 3199).
6. At the trial, Darren Campbell was represented by a competent and experienced criminal defence barrister. Defence counsel for Darren Campbell did not request the trial judge to give the jury a redirection or an additional direction in relation to the matters referred to at [99] above.
7. Ground 1 of Darren Campbell's appeal against conviction is without merit.

Darren Campbell's appeal against conviction: ground 2

1. Ground 2 of Darren Campbell's appeal against conviction asserts that the trial judge failed adequately to put before the jury the case sought to be made by Darren Campbell at the trial and that the failure occasioned a miscarriage of justice. Counsel for Darren Campbell's submissions in relation to ground 2 were based upon the submissions made in relation to ground 1. We are satisfied, generally for the reasons we have given in considering ground 1, that ground 2 of Darren Campbell's appeal against conviction is without merit.

Darren Campbell's appeal against conviction: conclusion

1. Neither ground 1 nor ground 2 of Darren Campbell's appeal against conviction has a reasonable prospect of success. Leave to appeal should be refused. The appeal must be dismissed.

1. Darryl Newton relies on three grounds of appeal.
2. Ground 1 alleges that the trial judge failed adequately and fairly to direct the jury so as to enable the jury properly to consider its verdict and, as a result, Darryl Newton suffered a miscarriage of justice at the trial.
3. Particular 1.1 of ground 1 asserts that his Honour directed the jury in a manner which unfairly prejudiced Darryl Newton's case.
4. Particular 1.2 of ground 1 asserts that his Honour failed adequately to direct the jury 'as to the danger of convicting [Darryl Newton] on the uncorroborated evidence of Justine Campbell'. His Honour erred, in the circumstances of the particular case, in not being satisfied that a corroboration warning was 'justified' within s 50 of the Evidence Act 1906 (WA). Justine Campbell:

(a) was an accomplice giving evidence as a State witness;

(b) was married to an accomplice, namely Darren Campbell;

(c) had benefited from cooperating and assisting in the State's case;

(d) had an interest in protecting herself and Darren Campbell at the expense of Darryl Newton;

(e) had previously made an untrue statement which implicated Darryl Newton and exculpated Darren Campbell;

(f) had wrongly considered Darryl Newton to be part of a conspiracy against her and Darren Campbell;

(g) was a substantial drug user at the time of the offending; and

(h) was inconsistent in her evidence and gave evidence inconsistent with a formal admission made by the State.

1. Particular 1.3 of ground 1 asserts that the directions given by his Honour to the jury were insufficient to cure the 'indelible prejudice' suffered by Darryl Newton as a result of the admission of hearsay statements that were admissible against Darren Campbell but not against Darryl Newton.
2. Particular 1.4 of ground 1 asserts that the directions given by his Honour to the jury failed adequately to deal with 'the direct and substantial conflict between the evidence of [Darryl Newton] and the evidence of Justine Campbell'.
3. Ground 2 alleges that the joinder of the prosecution of Darryl Newton with the prosecution of Darren Campbell and the failure of his Honour to order a separate trial of Darryl Newton, alternatively his Honour's failure adequately to direct the jury to protect Darryl Newton from the prejudice arising from the admission of hearsay statements admissible against Darren Campbell but not against Darryl Newton, resulted in Darryl Newton suffering a miscarriage of justice.
4. The particulars of ground 2 assert that evidence was admitted at the trial which was admissible against Darren Campbell but not against Darryl Newton and that the evidence was of such a prejudicial nature that the prejudice suffered by Darryl Newton could not be cured or ameliorated by a direction to the jury; alternatively, if it were possible to cure or ameliorate the prejudice, no sufficient direction was given by his Honour.
5. Ground 3 alleges that the verdict of guilty on which the conviction was based should be set aside because, having regard to the evidence, it is unreasonable or cannot be supported.
6. The particulars of ground 3 assert that:

3.1 The evidence did not support a finding beyond reasonable doubt that [Darryl Newton] agreed to take part in the killing of Travis Mills.

3.2 The evidence did not support a finding that [Darryl Newton] was aware of any plan or intention on the part of Justine [Campbell] or Darren Campbell to inflict serious harm on, or kill, Travis Mills.

3.3 The evidence did not support a finding beyond reasonable doubt that [Darryl Newton] entered [the Seville Grove home] on the night of the offence.

3.4 The evidence did not support a finding beyond reasonable doubt that [Darryl Newton] was aware that [Travis Mills] had been placed in the boot of [Travis Mills'] motor vehicle.

1. On 28 September 2017, Mazza JA referred Darryl Newton's application for leave to appeal to the hearing of the appeal.

Darryl Newton's appeal against conviction: ground 1: counsel for Darryl Newton's submissions

1. Counsel for Darryl Newton contended that '[f]rom the outset, [the trial judge] directed the jury in a manner prejudicial to [Darryl Newton's] case'. Counsel referred, in his written submissions, to numerous matters of fact arising from the evidence [70] - [98].
2. Counsel noted his Honour's statement, early in his summing up, that:

[T]he real question is not whether Travis Mills was murdered but who it was who murdered him. Was it Darren Campbell and Darryl Newton who went to the house that night? Did they, acting together, beat him and put him in the boot of the car? Did they, acting together, drive that car away and set it on fire intending thereby to kill Travis Mills? (ts 3240).

1. Counsel complained that an alternative scenario was not put to the jury, namely that Darren Campbell might have committed the murder without Darryl Newton's knowledge.
2. Counsel for Darryl Newton submitted that the trial judge, in directing the jury, concentrated on the State's case 'whilst minimising [Darryl Newton's] defence'. In particular, counsel submitted that:

(a) his Honour delivered a 'cursory summary' of Darryl Newton's evidence (ts 3262 - 3264);

(b) his Honour did not refer to 'the contest on the issue of' Darryl Newton's alleged 'recruitment' by Justine Campbell;

(c) although his Honour drew the jury's attention to, and invited them to consider, an alleged discrepancy between the time Darryl Newton said he waited for Darren Campbell in the vicinity of the Seville Grove home and the time on the CCTV footage, any such discrepancy did not 'go to any of the critical issues of' Darryl Newton's defence; and

(d) his Honour used the words 'if you accept Darryl Newton's evidence ... Darryl Newton was an innocent dupe' (ts 3263).

1. Counsel also complained that his Honour gave a much lengthier summary of Justine Campbell's evidence than he did of Darryl Newton's evidence. His Honour did not redress the balance despite defence counsel for Darryl Newton having raised concerns with his Honour about the fairness of his Honour's approach.
2. Counsel for Darryl Newton submitted that, in the circumstances, the trial judge was bound to give the jury 'an appropriate warning specifically relating to [Darryl Newton]'. It was submitted that it was necessary for the warning to have identified:

(a) that it would be dangerous for the jury to convict Darryl Newton on the evidence of Justine Campbell;

(b) that it would be dangerous to do so unless her evidence was corroborated;

(c) that Justine Campbell had a motive to lie about Darryl Newton's involvement, which included the minimisation of her husband's involvement;

(d) that Justine Campbell was a person of bad character;

(e) the nature of corroboration and the material that was capable of constituting corroboration;

(f) that there was no evidence, other than that of Justine Campbell, 'relevant to the determination of the critical issue for [Darryl Newton]'; and

(g) the material that was incapable of constituting corroboration (in particular, that Justine Campbell's hearsay evidence as to what she had been told by Darren Campbell was inadmissible against Darryl Newton).

1. Counsel maintained that the directions which his Honour gave in relation to Justine Campbell's evidence and her credibility were insufficient. Although the directions referred to Justine Campbell's self-interest as an accomplice, his Honour 'did so only briefly and broadly and without reference to the evidence relating to that interest'.
2. Counsel complained that the trial judge did not raise with the jury the evidence which suggested that Justine Campbell might have a particular interest in exaggerating Darryl Newton's involvement to minimise both her own involvement and that of Darren Campbell. Counsel also complained that his Honour did not identify any evidence capable of corroborating Justine Campbell's account of her alleged conversations with Darryl Newton, including his alleged admission about discarding his sneakers.
3. According to counsel, as a result of the inadequacy in his Honour's directions, the jury were 'unable to properly consider' Darryl Newton's defence.
4. Counsel for Darryl Newton submitted that '[b]ecause the forensic issue of the alleged "recruitment" of [Darryl Newton] turned on a direct and substantial conflict between the evidence of Justine Campbell and the evidence of [Darryl Newton]', the trial judge was bound to direct the jury that 'even if they preferred the evidence of Justine Campbell, they should not convict [Darryl Newton] unless satisfied beyond reasonable doubt of the truth of [her] evidence'. Counsel also argued that the jury should have been directed that 'even if they did not positively believe [Darryl Newton's evidence], they must not find an issue against [him] contrary to that evidence if it gave rise to a reasonable doubt as to the issue'. Counsel referred to Liberato v The Queen[14] and complained that '[n]o appropriate Liberato direction was given by his Honour'.

Darryl Newton's appeal against conviction: particular 1.1 of ground 1: its merits

1. At the trial, Darryl Newton was represented by a competent and experienced criminal defence barrister.
2. Defence counsel for Darryl Newton did not raise with the trial judge any of the numerous matters of fact which Darryl Newton now relies upon in the appeal in support of his contention that '[f]rom the outset, his Honour directed the jury in a manner prejudicial to [Darryl Newton's defence]'.
3. Counsel for Darryl Newton's assertion that '[no] alternative was put to the jury that Darren Campbell might have committed the murder without [Darryl Newton's] knowledge' is not correct. His Honour expressly mentioned, in the course of summarising Darryl Newton's defence, the scenario that Darryl Newton may have been involved unknowingly in the events associated with Travis Mills' murder (ts 3233, 3245, 3262 - 3264, 3312 - 3313). His Honour also referred to Darryl Newton's denial in his evidence that Justine Campbell had asked for his assistance in respect of Travis Mills and to Darryl Newton's denial in his evidence that he had discarded a pair of sneakers he had worn as seen in CCTV footage taken at the Beeliar service station (ts 3294, 3305).
4. Counsel's assertions that the trial judge said nothing about the difficulties with Justine Campbell's evidence in relation to her discussions with Darryl Newton and that his Honour did not adequately summarise her evidence are incorrect.
5. We repeat what we have written at [123] - [127] above in the course of dealing with a similar complaint made by Darren Campbell about the fairness of his Honour's summing up.
6. We are satisfied that the nature and extent of the trial judge's directions and comments about the evidence were sufficient to ensure that the jury were given sufficient knowledge and understanding of the evidence, the State's case and Darryl Newton's defence to enable them to evaluate the competing cases and to determine the outcome of the trial according to the evidence.
7. We are also satisfied that there is no merit in counsel for Darryl Newton's complaint that his Honour's closing address involved a 'concentration on the State's case'. It was necessary for his Honour to devote a significant part of his summing up to the State's case because there were five accused (including Justice Campbell, who had pleaded guilty), the State's case against some of the accused was materially different from the State's case against the other accused and the State carried the burden of proof. His Honour put Darryl Newton's defence to the jury in a fair and balanced manner.
8. In our opinion, having regard to:

(a) the issues that the jury had to decide as between the State and Darryl Newton;

(b) the uncomplicated nature of the evidence relied upon by the State in its case against Darryl Newton;

(c) the review of the evidence and the issues undertaken by defence counsel for Darryl Newton in his closing address;

(d) his Honour's accurate summary of Darryl Newton's defence in his summing up; and

(e) his Honour's treatment of the evidence of Justine Campbell and her credibility, including the accomplice warning,

his Honour's directions to the jury did not unfairly prejudice Darryl Newton's case.

Darryl Newton's appeal against conviction: particular 1.2 of ground 1: its merits

1. Section 50 of the Evidence Act provides:

(1) In this section corroboration warning in relation to a trial means a warning to the effect that it is unsafe to convict the person who is being tried on the uncorroborated evidence of one witness.

(2) On the trial of a person on indictment for an offence -

(a) the judge is not required by any rule of law or practice to give a corroboration warning to the jury in relation to any offence of which the person is liable to be convicted on the indictment; and

(b) the judge shall not give a corroboration warning to the jury unless the judge is satisfied that such a warning is justified in the circumstances.

1. Section 50 was inserted by the Criminal Law Amendment Act 1988 (WA) and subsequently amended by the Acts Amendment (Evidence of Children and Others) Act 1992 (WA). Section 50 superseded the then existing s 36BE(1) of the Evidence Act.
2. The proper construction and effect of s 50 was considered by Wheeler JA (McLure & Pullin JJA agreeing) in White v The Queen.[15] See also Moloney v The State of Western Australia;[16] Evans v The State of Western Australia;[17] Santos v The State of Western Australia [No 2].[18]
3. In Cecez v The State of Western Australia,[19] Buss JA reviewed a number of decisions of the High Court in relation to corroboration warnings.[20] His Honour also reviewed the decision of the Court of Criminal Appeal of Victoria in Director of Public Prosecutions v Faure.[21]
4. In Cecez, Buss JA concluded (Miller JA agreeing) that:

(a) the High Court authorities and the decision in Faure do not hold that, as a matter of course, a trial judge must instruct or warn the jury as to the need for careful scrutiny of the evidence of a prosecution witness whose evidence is significant (or even critical) to the prosecution case if the witness is of bad character or has his or her own interests to serve; and

(b) the necessity or desirability for such an instruction or warning will depend, in each case, on the particular circumstances, including whether there is a risk that the jury may be unable to appreciate without assistance, or may overlook, some deficiency or danger associated with the witness or his or her evidence [109].

1. Cases in which accomplice evidence is given by a co-accused fall into a very special category.[22]
2. Apart from s 50 of the Evidence Act, a judge is bound to give an instruction or a warning to the jury if, in the circumstances of the particular case, the instruction or the warning is necessary to avoid a perceptible risk of a miscarriage of justice.[23] This is an incident of the judge's duty to ensure a fair trial for the accused.[24]
3. In the present case, counsel for Darryl Newton's assertion that '[i]f the jury had entirely disbelieved Justine Campbell, it would not have been possible for it to convict [Darryl Newton]' and his assertion that 'the only evidence against [Darryl Newton] was the uncorroborated evidence of Justine Campbell' were incorrect. The State's case was that even if the jury did not believe the evidence that Justine Campbell gave, the remaining evidence was nevertheless sufficient to convict each of the accused (ts 2961 - 2962). The trial judge directed the jury by stating, '[b]ut do not make the mistake of thinking that the prosecution case stands or falls on the evidence of Justine Campbell. Even if you rejected her evidence in its entirety, you would still be obliged to consider all of the other evidence to determine whether or not the accused are guilty' (ts 3241). Defence counsel for Darryl Newton did not object to that direction nor seek a redirection or an additional direction.
4. In our opinion, his Honour was not bound, in the circumstances, to give the jury a corroboration warning in relation to Justine Campbell's evidence. In the circumstances, an instruction or warning in the terms contended for by counsel for Darryl Newton was not required to avoid a perceptible risk of a miscarriage of justice in relation to the jury's assessment of Justine Campbell's evidence. The accomplice warning given by his Honour was, in the circumstances, an adequate warning. Also, his Honour referred the jury to a number of other specific issues concerning Justine Campbell's evidence and her credibility. His Honour encouraged the jury to review Justine Campbell's cross-examination and he gave the jury the transcript of all of the evidence. At the outset of the trial, the prosecutor explained to the jury Justine Campbell's status as a person who was, on her own confession, involved in the plan to kill Travis Mills and who had pleaded guilty to his murder (ts 339).
5. We are satisfied that there was no hidden danger in relation to Justine Campbell's evidence which the jury might have been unable to appreciate without further assistance or a further instruction or warning from his Honour. It is not apparent, on our examination of the trial record, that Justine Campbell had any attractive features as a witness or that there were any other circumstances which gave rise to a risk that the jury might overlook her status as a convicted murderer who had, on the case of Darryl Newton and the other accused, her own interests to serve.
6. Particular 1.2 of ground 1 is without merit.

Darryl Newton's appeal against conviction: particular 1.3 of ground 1: its merits

1. Particular 1.3 of ground 1 asserts that his Honour's directions to the jury were insufficient to cure the 'indelible prejudice' suffered by Darryl Newton as a result of the admission of hearsay statements that were admissible against Darren Campbell but not against Darryl Newton.
2. This particular is in substance included within ground 2. It is convenient to deal with the complaint embodied in particular 1.3 in the course of dealing with ground 2.
3. We merely note, at this stage, that counsel for Darryl Newton's assertion that 'the jury ought to have been directed that Justine Campbell's evidence of her discussion with Darren Campbell after the murder could not be used as corroboration for her evidence on forensic issues raised by [Darryl Newton's] defence' is without merit (original emphasis). Justine Campbell's evidence of her discussion with Darren Campbell, when she saw that her husband had an injured leg, was not admissible against Darryl Newton. His Honour gave the jury a direction to that effect (ts 3242, 3298 - 3300).
4. For the reasons we will give in addressing ground 2, particular 1.3 of ground 1 is without merit.

Darryl Newton's appeal against conviction: particular 1.4 of ground 1: its merits

1. In Liberato, Brennan J (dissenting) said:

When a case turns on a conflict between the evidence of a prosecution witness and the evidence of a defence witness, it is commonplace for a judge to invite a jury to consider the question: who is to be believed? But it is essential to ensure, by suitable direction, that the answer to that question (which the jury would doubtless ask themselves in any event) if adverse to the defence, is not taken as concluding the issue whether the prosecution has proved beyond reasonable doubt the issues which it bears the onus of proving. The jury must be told that, even if they prefer the evidence for the prosecution, they should not convict unless they are satisfied beyond reasonable doubt of the truth of that evidence. The jury must be told that, even if they do not positively believe the evidence for the defence, they cannot find an issue against the accused contrary to that evidence if that evidence gives rise to a reasonable doubt as to that issue (515).

1. It is well-established that a Liberato direction is not required as a matter of law. See, for example, Salmon v The Queen.[25] Such a direction should be given, however, if, in the circumstances of the particular case, there is a real (as distinct from a fanciful) risk that the jury may otherwise have the impression that disbelief of an accused's evidence, or preference for a complainant's evidence, means that the State has proved its case beyond reasonable doubt.[26]
2. In Koushappis v The State of Western Australia,[27] Roberts-Smith JA (McLure & Buss JJA agreeing) approved this form of direction suggested by Kirby J (Sheller JA & Dowd J agreeing) in R v Anderson:[28]

First, if you believe the evidence of the accused, obviously you must acquit.

Second, if you find difficulty in accepting the evidence of the accused, but think that it might be true, then you must acquit.

Third, if you do not believe the accused, then you should put his testimony to one side. The question will remain; has the Crown, upon the basis of evidence that you do accept, proved the guilt of the accused beyond reasonable doubt? [26]

1. In the present case, counsel for Darryl Newton contended that a Liberato direction was required and was not given.
2. The trial judge gave the jury the following direction in relation to the evidence given by Joanne Ruthsalz and Darryl Newton at the trial:

Now as you know, two of the accused, Darryl Newton and Joanne Ruthsalz, gave evidence in this trial. As such, they became witnesses like any other.

The evidence that they gave on oath here is admissible against all accused in contrast to their interviews which were out-of-court statements which were not on oath. What I said to you about assessing the credibility and reliability of witnesses applies equally to these two accused in giving their evidence. You can take into account the way in which they gave their evidence and its content. Give consideration to whether what they said was inherently believable and consistent with other evidence.

Take into account how well their evidence stood up under cross-examination. If you accept the evidence of either of them as entirely truthful or it raises in your mind a reasonable doubt as to the guilt of either of them, then you would find the particular accused not guilty. Do not, however, think that their guilt turns simply on whether or not you believe them in the important respects. Because even if you reject the evidence of either of them in its entirety, this does not mean that he or she is necessarily guilty.

You would still have to be satisfied that their guilt has been proven on all of the evidence at the trial (ts 3243 - 3244).

1. His Honour also directed the jury in orthodox terms about the burden and standard of proof and emphasised that none of the accused had to prove anything (ts 238, 3199).
2. We are satisfied that the trial judge's direction in relation to the evidence of Joanne Ruthsalz and Darryl Newton and his directions in relation to the burden and standard of proof, ensured that there was no real (as distinct from a fanciful) risk that the jury would have been left with the impression that:

(a) Darryl Newton bore any burden or onus of proof; or

(b) a disbelief of Darryl Newton's version of events or a preference for Justine Campbell's evidence meant that the State had proved its case.

Darryl Newton's appeal against conviction: ground 2: counsel for Darryl Newton's submissions

1. Counsel for Darryl Newton noted that Justine Campbell was unaware of what had happened at the Seville Grove home on the night of 2 April 2015 (ts 1779 - 1780, 1782).
2. However, Justine Campbell gave evidence about what she asserted Darren Campbell had told her after Travis Mills had been murdered. The evidence was inadmissible against Darryl Newton, but was highly prejudicial to him.
3. It was submitted that Justine Campbell's evidence of her conversation with Darren Campbell was 'dramatic and emotive' and was the subject of extensive cross-examination. The reception of the evidence endangered, to a significant extent, the prospect of Darryl Newton receiving a fair trial.
4. According to counsel, in the circumstances of the case, the prejudice suffered by Darryl Newton as a result of his being tried jointly with the other accused (in particular, Darren Campbell) was 'indelible'.
5. Counsel submitted that although his Honour directed the jury that Justine Campbell's evidence about her conversation with Darren Campbell, after he returned to their home on the night of 2 April 2015, was admissible against Darren Campbell alone, '[Darryl Newton's] circumstances including the nature of his defence and the impact of the evidence required a much more thorough direction'.
6. Counsel noted that, immediately before his Honour turned to Darryl Newton's evidence (ts 3262), his Honour referred to Justine Campbell's evidence of her conversation with Darren Campbell.
7. According to counsel for Darryl Newton, in all the circumstances, his Honour's directions did not and could not prevent substantial prejudice being suffered by Darryl Newton. A separate trial of Darryl Newton should have been ordered 'as soon as the relevant evidence was admitted against Darren Campbell'.

Darryl Newton's appeal against conviction: ground 2: its merits

1. The principles relating to the exercise of this court's power under s 133 of the Criminal Procedure Act to order separate trials are summarised in Buss P's reasons (Mazza & Mitchell JJA agreeing) in Mansfield v The State of Western Australia.[29] It is unnecessary to repeat them.
2. Ordinarily, the fact that a jury will hear evidence which is admissible against one co-accused alone does not, of itself, require that a separate trial be ordered.
3. In the present case, the trial judge emphasised, on two different occasions, that Justine Campbell's evidence of her conversation with Darren Campbell was not admissible against Darryl Newton (ts 3242, 3298 - 3300). Also, his Honour gave orthodox directions to the effect that the jury must consider the State's case against each of the accused separately (ts 3201, 3209, 3213, 3298 - 3299, 3304).
4. We are satisfied, for the following reasons, that his Honour was not required to order a separate trial for Darryl Newton and that the directions his Honour gave were adequate to guard against the risk that Darryl Newton might be prejudiced by the admission of the evidence in question.
5. First, defence counsel for Darryl Newton did not raise with the trial judge any matter concerning his Honour's directions in relation to the evidence in question. No application for a separate trial was made on behalf of Darryl Newton either before the trial began or during the trial. Defence counsel did not seek a redirection or an additional direction in relation to the evidence in question.
6. Secondly, the principle that accused persons who are alleged to have offended jointly should ordinarily be tried together is not usually weakened by the fact that one co-accused implicates another co-accused.[30] At the trial, Darryl Newton gave evidence implicating Darren Campbell (ts 2205, 3263). A joint trial of Darryl Newton and the other accused advanced the administration of justice in that it gave the jury the means of obtaining an overview of the respective roles of each accused in the offence with which they were each charged.
7. Thirdly, Justine Campbell's evidence as to what Darren Campbell had told her when he returned home comprised a short and confined aspect of the whole of the evidence to be considered by the jury. The trial of Darryl Newton and the other accused did not involve a complicated mixture of evidence which the jury could not reasonably have been expected to evaluate and deal with appropriately. The evidence admissible in the State's case against Darren Campbell, but inadmissible in the State's case against Darryl Newton, was not so voluminous, intermingled with other evidence and ill-defined that the jury would have been unable to identify which pieces of evidence they were required to ignore when they were considering the State's case against Darryl Newton.
8. Fourthly, the jury's task was to examine the State's case against each of the accused, in the context of all of the evidence that was admissible against him or her, separately from the other accused, and solely by reference to the evidence that was admissible against him or her. The jury was required, when considering the State's case against one of the accused, to put aside the evidence and findings it had made in relation to any of the other accused. We have no doubt that the jury was capable of performing those tasks in accordance with his Honour's directions. It was reasonable to expect that the jury, properly directed, would not take into account, when considering the State's case against Darryl Newton, any prejudicial evidence that was inadmissible against him. The jury would have been capable of following his Honour's directions. A criminal trial on indictment proceeds on the assumption that, as a general rule, the jurors are true to their oath or affirmation and they understand and obey the trial judge's directions. In the present case, no features of the trial and no aspects of the evidence displaced the general rule, or required the conclusion that, in the circumstances, the general rule should not have been applied.
9. Fifthly, the present case did not involve complications or difficulties of the nature or to the extent that existed in such cases as R v Jones;[31] R v Pham;[32] The State of Western Australia v Tolliday[33] and Russell v The State of Western Australia.[34] In the present case, there were no special or other features of the case that required Darryl Newton to be tried separately from the other accused.
10. Sixthly, even if a separate trial for Darryl Newton had been ordered, the jury would have heard evidence from Justine Campbell that she had seen Darren Campbell return home after the murder with an injured leg and that she had dressed the wound.
11. Seventhly, the evidence admissible against Darryl Newton was not solely circumstantial. It included Darryl Newton's own evidence to the effect that he had unknowingly done acts which assisted in Travis Mills' death (ts 3233, 3262 - 3264); Justine Campbell's direct evidence as to Darryl Newton's involvement in the plan; the evidence admissible against Darryl Newton pursuant to the co-conspirators rule; and Darryl Newton's unrecorded admissions against interest to Detective Geoffrey Ball.
12. In our opinion, the trial judge's failure to have ordered a separate trial for Darryl Newton did not occasion a miscarriage of justice. Also, in our opinion, the trial of Darryl Newton jointly with the other accused did not result in a miscarriage of justice. In all the circumstances and for the reasons we have given, the trial of Darryl Newton jointly with the other accused was in the interests of justice. Further, in our opinion, his Honour adequately directed the jury in relation to Justine Campbell's evidence as to what Darren Campbell had told her when he returned home after the murder with an injured leg.
13. Ground 2 is without merit.

Darryl Newton's appeal against conviction: ground 3: counsel for Darryl Newton's submissions

1. Counsel for Darryl Newton submitted that the verdict of guilty against Darryl Newton should be set aside 'as being unsafe and unsatisfactory and not supported by the evidence'.
2. It was submitted that '[t]he only substantive issue arising from [Darryl Newton's defence] was whether [he] knew of an intention on the part of Justine [Campbell] and/or Darren Campbell to seriously harm or kill Travis Mills'.
3. Counsel asserted that, on the State's case, Darryl Newton might have known of his, her or their intention from:

(a) his so-called 'recruitment' by Justine Campbell in March 2015;

(b) his first trip to the Seville Grove home on late 31 March/early 1 April 2015 with Darren Campbell;

(c) his second trip to the Seville Grove home on 2 April 2015 with Darren Campbell; and

(d) his presence in the Seville Grove home when Travis Mills was assaulted.

1. As to the so-called 'recruitment' by Justine Campbell, counsel asserted that the only admissible evidence relating to the 'recruitment' of Darryl Newton to a plan to harm Travis Mills was Justine Campbell's evidence. Even 'leaving aside the vagaries and inconsistencies within the evidence of Justine Campbell, and her intrinsic unreliability as a witness', her evidence on this issue was inconclusive in that:

(a) she never told Darryl Newton that she wanted Travis Mills killed;

(b) she did not give evidence of any agreement by Darryl Newton to join the plan;

(c) she did not give evidence of having provided any details about Travis Mills to Darryl Newton; and

(d) her drug habit (including the consumption of methylamphetamine) was out of control; she described herself as being on 'autopilot' and in 'protection mode' (ts 1670, 1828, 1895); her drug habit had affected her short-term memory (ts 1828, 1830, 1832, 1906); and she could not recall the details of the discussions (ts 1908 - 1909).

1. It was submitted that Justine Campbell did not know what, if anything, had been discussed between Darren Campbell and Darryl Newton. Darren Campbell did not give evidence. The evidence adduced by the State was insufficient to enable the jury to find that Justine Campbell had recruited Darryl Newton to join a plan to harm Travis Mills.
2. As to the first trip to the Seville Grove home on late 31 March/early 1 April 2015, counsel asserted that, apart from text messages sent before the first trip, Justine Campbell did not give any credible evidence admissible against Darryl Newton about the first trip. In particular, Justine Campbell gave 'no credible evidence admissible against [Darryl Newton]' about the purpose of the first trip or whether Darryl Newton was told anything 'beyond that the trip related to cannabis supply'.
3. As to the second trip to the Seville Grove home on 2 April 2015, counsel asserted that, apart from text messages sent before the second trip, Justine Campbell did not give any credible evidence admissible against Darryl Newton about the second trip. In particular, Justine Campbell gave 'no credible evidence admissible against [Darryl Newton]' about:

(a) whether Darryl Newton was told anything 'beyond that the trip related to an insurance job for a friend of Darren Campbell'; or

(b) whether Darryl Newton did anything on the evening in question apart from purchasing petrol, driving Darren Campbell to the Seville Grove home and waiting in the vicinity, at Darren Campbell's request, in his car.

1. Darryl Newton gave evidence at the trial (ts 2204 - 2363) that:

(b) he agreed to drive his friend, Darren Campbell, to an unspecified address so that Darren Campbell could collect a car for the purpose of destroying it in connection with an insurance fraud;

(c) he agreed to follow Darren Campbell, wait for the car to be set on fire and drive Darren Campbell from the scene; and

(d) he did not enter the Seville Grove home and he did not know that anyone was in the car when it was set alight.

1. Darren Campbell did not give evidence at the trial (ts 2168). He maintained, through his defence counsel, that he had no involvement in the plan to kill Travis Mills.
2. It was submitted that the State did not adduce any forensic evidence which supported its case against Darryl Newton. In particular:

(a) no DNA or fingerprint evidence was adduced to suggest that Darryl Newton had ever entered the Seville Grove home, despite an extensive examination of the crime scene;

(b) no forensic evidence was adduced as to whether there were two assailants in the Seville Grove home on the night of 2 April 2015;

(c) an examination of Darryl Newton's car revealed the presence, in the front passenger footwell, of transferred bloodstains consistent with Travis Mills' blood and a drop of blood consistent with Darren Campbell's blood;

(d) no bloodstains of any type were found on the driver's side of Darryl Newton's car;

(e) the evidence of blood found in Darryl Newton's car was consistent with his account of what had occurred on 2 April 2015; and

(f) an examination of the contents of Darryl Newton's car on 13 May 2015 did not locate any item bearing any forensic evidence which connected the item to Travis Mills, his car or the Seville Grove home.

1. It was also submitted that the inference relied upon by the State in relation to Darryl Newton's sneakers, namely that he discarded them because they bore Travis Mills' blood, was not made out. In particular:

(a) the State's suggestion that the sneakers bore Travis Mills' blood was inconsistent with the forensic evidence in that no bloodstains were found on the driver's side of Darryl Newton's car; and

(b) the alleged admission to Justine Campbell about the sneakers was not included in any version of events she gave until July 2016.

1. Counsel asserted that the crux of ground 3 was that it was not open to the jury to be satisfied beyond reasonable doubt that Darryl Newton's evidence, explaining his conduct on the night of the murder, should be rejected. According to counsel, a reasonable inference consistent with innocence was open, namely that Darryl Newton believed that he was merely assisting Darren Campbell in committing an insurance fraud (appeal ts 36).

Darryl Newton's appeal against conviction: ground 3: its merits

1. By s 30(3)(a) of the Criminal Appeals Act 2004 (WA), in the case of an appeal against conviction, the Court of Appeal must allow the appeal if, in its opinion, the verdict of guilty on which the conviction is based should be set aside because, having regard to the evidence, it is unreasonable or cannot be supported.
2. In M v The Queen,[35] Mason CJ, Deane, Dawson and Toohey JJ said, in relation to s 6(1) of the Criminal Appeal Act 1912 (NSW) (which is in substance identical to s 30(3) of the Western Australian Criminal Appeals Act):

Where a court of criminal appeal sets aside a verdict on the ground that it is unreasonable or cannot be supported having regard to the evidence, it frequently does so expressing its conclusion in terms of a verdict which is unsafe or unsatisfactory (492).

1. In Libke v The Queen,[37] Hayne J (Gleeson CJ & Heydon J relevantly agreeing) said that where it is alleged that a conviction is unsafe or unsatisfactory, the question for an appellate court is:

[W]hether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant's guilt (M v The Queen [1994] HCA 63; (1994) 181 CLR 487 at 492 - 493). It is not sufficient to show that there was material which might have been taken by the jury to be sufficient to preclude satisfaction of guilt to the requisite standard. In the present case, the critical question for the jury was what assessment they made of the whole of the evidence that the complainant and the appellant gave that was relevant to the issue of consent to the digital penetration that had occurred in the park. That evidence did not require the conclusion that the jury should necessarily have entertained a doubt about the appellant's guilt [113]. (original emphasis)

1. It is a question of fact whether a conviction is unsafe or unsatisfactory. This court must decide the question by making its own independent assessment of the sufficiency and quality of the evidence, and determining whether, notwithstanding that there is evidence upon which a tribunal of fact might convict, nevertheless it would be dangerous in the circumstances to permit the verdict to stand. See M (492 - 493); SKA v The Queen.[39]
2. The appellate court's task is not to consider, as a question of law, whether there was sufficient evidence to sustain a conviction. See Morris v The Queen.[40]
3. Rather, the appellate court, in making an independent assessment of the whole of the evidence to determine whether it was open to the tribunal of fact to be satisfied beyond reasonable doubt as to the guilt of the accused, must weigh the whole of the evidence (in particular, the competing evidence). See SKA [22], [24].
4. However, an appellate court, in assessing whether it was open to the tribunal of fact to be satisfied beyond reasonable doubt that the accused was guilty, 'must not disregard or discount either the consideration that the [tribunal of fact] is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the [tribunal of fact] has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations': see M (493); R v Nguyen;[41] SKA [13].
5. In R v Baden-Clay,[42] French CJ, Kiefel, Bell, Keane and Gordon JJ said that where there is an appeal against conviction on the ground that the verdict was unreasonable, the ultimate question for the appellate court 'must always be whether the [appellate] court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty (M v The Queen [1994] HCA 63; (1994) 181 CLR 487 at 494 - 495. See also R v Hillier [2007] HCA 13; (2007) 228 CLR 618 at 630 [20] and the authorities cited)' [66].
6. Circumstantial evidence must not, of course, be considered on a piecemeal basis. It must be evaluated in its entirety. See R v Hillier.[43]
7. In the present case, a number of the submissions made by counsel for Darryl Newton tended, impermissibly, to treat the circumstantial evidence implicating Darryl Newton on a piecemeal basis.
8. In Baden-Clay, their Honours made these observations in relation to determining whether, in a circumstantial evidence case, a reasonable inference consistent with the accused's innocence is open:

For an inference to be reasonable, it 'must rest upon something more than mere conjecture. The bare possibility of innocence should not prevent a jury from finding the prisoner guilty, if the inference of guilt is the only inference open to reasonable men upon a consideration of all the facts in evidence' (Peacock v The King [1911] HCA 66; (1911) 13 CLR 619 at 661, quoted in Barca v The Queen [1975] HCA 42; (1975) 133 CLR 82 at 104) (emphasis added). Further, 'in considering a circumstantial case, all of the circumstances established by the evidence are to be considered and weighed in deciding whether there is an inference consistent with innocence reasonably open on the evidence' (R v Hillier [2007] HCA 13; (2007) 228 CLR 618 at 637 [46] (footnote omitted)) (emphasis added). The evidence is not to be looked at in a piecemeal fashion, at trial or on appeal (R v Hillier [2007] HCA 13; (2007) 228 CLR 618 at 638 [48]. See also Chamberlain v The Queen [No 2] [1984] HCA 7; (1984) 153 CLR 521 at 535) [47].

1. In the present case, the State's case against Darryl Newton was that he was a party to the offence of murder. The State alleged that Darryl Newton acted together with Darren Campbell in attacking and killing Travis Mills, either with an intention to kill or with an intention to do life-endangering injury; alternatively, that Darryl Newton aided, enabled, counselled or procured the acts which caused Travis Mills' death; alternatively, Darryl Newton planned with others seriously to assault Travis Mills in circumstances where murder was a probable consequence. See the prosecutor's closing address at ts 2764, 2868 - 2896, 2903 - 2905, 2927, 2952 - 2953, 2957 - 2961. Also, see the trial judge's summing up at ts 3202 - 3205, 3208, 3233, 3240 - 3242, 3310. Further, see the three question trail documents in respect of Darryl Newton that were given to the jury and referred to by his Honour at ts 3213 - 3215 and, also, at ts 3201, 3208 - 3209, 3217.
2. The principles relating to criminal responsibility under s 7 of the Code are summarised in Buss JA's reasons in Campbell v The State of Western Australia.[44]
3. The principles relating to criminal responsibility under s 8 of the Code are summarised in our reasons at [68] - [77] above.
4. At the trial, there was a significant body of evidence which implicated Darryl Newton in the commission of the offence of murder. The body of evidence included:

(a) The evidence of Justine Campbell, including her evidence of conversations she had with Darryl Newton (ts 3242, 3268, 3270 - 3271, 3274).

(b) Darryl Newton's motive to assist Justine Campbell because they were friends (ts 3208).

(d) The evidence of what was said in relation to the plan in conversations between Joanne Ruthsalz and Justine Campbell, between Seleena Ruthsalz and Justine Campbell and between Darryl Newton and Justine Campbell, and the discussions heard by Luke Newton (who may have been distantly related to Darryl Newton but who had never met him). Also, there was evidence as to the conduct of each of the accused and Justine Campbell in relation to the plan between 31 March 2015 and 3 April 2015 which culminated in Travis Mills' death and included the clean-up at the Seville Grove home after his death (ts 3241 - 3242, 3249 - 3251).

(e) Telephone records in relation to the plan from telephones used by Darryl Newton and the other accused. Those records included text messages, and the time of text messages and conversations, during the period preceding Travis Mills' killing (ts 3253 - 3262; exhibit P106). As we will explain, the nature, content and extent of the text communications involving Darryl Newton are a substantial obstacle to the submission made on his behalf that the jury should have entertained a reasonable doubt as to whether Darryl Newton was aware of the plan seriously to harm Travis Mills.

(f) CCTV footage of motor vehicles, including Darryl Newton's car, in the vicinity of the Seville Grove home in the two-day period before the killing (ts 3251 - 3253, 3257).

(g) Darryl Newton's evidence to the effect that he unknowingly did acts which assisted in Travis Mills' killing. According to Darryl Newton, he thought he was assisting Darren Campbell with a fraudulent insurance claim (ts 3233, 3262 - 3264). Darryl Newton said in evidence that he was with Darren Campbell on the night of 31 March 2015. Indeed, Darryl Newton's car is captured in the CCTV footage taken on that night as the car passes the Seville Grove home on numerous occasions (ts 3252). Darryl Newton also said in evidence that he was with Darren Campbell on the night of the killing, but did not enter the Seville Grove home (ts 3263). Darryl Newton denied that Justine Campbell had spoken to him about his assisting with an issue involving Travis Mills (ts 3294).

(h) CCTV footage and a purchase voucher confirmed that Darryl Newton and his car were at the Beeliar service station on the night of the killing and that Darryl Newton had purchased a container of petrol. Other CCTV footage taken on that night showed Darryl Newton's car being driven past the Seville Grove home on several occasions (ts 3252) and, later, Darryl Newton's car and Travis Mills' car being driven in convoy to Hilbert, where Travis Mills' car was incinerated (ts 3253).

(i) The evidence that Darryl Newton had disposed of his sneakers, with Travis Mills' blood on them, as evidence of his consciousness of guilt (ts 3246, 3304 - 3305).

(j) Darryl Newton's electronically recorded interview with police in which he allegedly told Edwards lies.

(k) Darryl Newton's unrecorded admissions to Detective Ball to the effect that he had not known that Travis Mills was in the boot of Travis Mills' car; that he was merely the second driver; that he did not know something so serious was going to happen; and that '[y]ou think you can trust people and then this happens. I'm normally a better judge of character' (ts 1529 - 1530, 3243, 3317).

(l) The forensic evidence of the clean-up at the Seville Grove home and the other forensic evidence (ts 3246 - 3247). The other forensic evidence included evidence of blood having been found in Darryl Newton's car which contained DNA consistent with being, to a high degree of probability, that of Travis Mills and that of Darren Campbell (ts 3262).

1. The telephone records revealed that the three-way communications between Darren Campbell, Justine Campbell and Darryl Newton included:

(a) About nine text messages to which Darryl Newton was a party, which concerned making arrangements for Darren Campbell and Darryl Newton to drive to the relevant area in the early hours of the morning on 1 April 2015 in Darryl Newton's car because 'he [Travis Mills] knows our [the Campbell's] cars'.

(b) Messages making arrangements commencing later on 1 April 2015 through to the early hours of the morning on 2 April 2015 for a further car trip to the area.

(c) Text messages making arrangements for Darren Campbell and Darryl Newton to go out, again in Darryl Newton's car, during the evening of 2 April 2015 when the killing occurred, which involved the exchange of eight text messages to or from Darryl Newton.

1. On Darryl Newton's case, what was occurring in the text communications was that:

(a) Justine Campbell and Darren Campbell had a plan to murder Travis Mills, and were making arrangements to execute that plan.

(b) They wanted to involve Darryl Newton to assist in various respects. To that end they gave him some details, but did not tell him what they had planned or were doing.

1. In the context of the evidence as a whole, and taking into account the nature, content and extent of the text communications involving Darryl Newton, the jury were entitled to take the view that Darryl Newton's case as to his belief strained credulity to its breaking point.
2. The fact that some types of forensic evidence were not adduced as part of the State's case is not of any significance. All of the evidence that was adduced at the trial had to be considered, evaluated and weighed by the jury.
3. It is unnecessary that a co-accused know every detail of the offence ultimately committed before criminal responsibility will arise under s 8 of the Code. So, it is not of any significance that Darryl Newton may not have entered the Seville Grove home on the night of the killing or that Darryl Newton may not have known that Travis Mills had been placed in the boot of Travis Mills' car.
4. We are satisfied, based on our examination of the trial record, that the jury were entitled to infer, beyond reasonable doubt, from the circumstantial evidence adduced by the State, considered as a whole, that Travis Mills was attacked in the Seville Grove home and suffered an impact injury or injuries which caused bleeding, that he was then either forced or placed into the boot of his car and that the car was then driven to Hilbert and set alight.
5. We are satisfied, after examining the trial record and weighing the evidence, that it was reasonably open to the jury to reject Darryl Newton's defence and to be satisfied beyond reasonable doubt as to his guilt on the count of murder. In particular, the jury were entitled to reject, beyond reasonable doubt, Darryl Newton's evidence in which he sought to explain his conduct on the night of and in the period immediately preceding the murder and to exclude, as a reasonable inference, that Darryl Newton believed he was merely assisting Darren Campbell in committing an insurance fraud.
6. A jury, acting reasonably, was not precluded by the state of the evidence at the trial from convicting Darryl Newton of murder. The trial record does not require the conclusion that the jury, acting reasonably, must necessarily have entertained a doubt about Darryl Newton's guilt. The verdict of guilty was not unreasonable. It was supported by evidence that the jury was entitled to accept and inferences that the jury was entitled to draw. We do not have a reasonable doubt as to Darryl Newton's guilt of murder or as to the correctness of his conviction. We have arrived at those conclusions after paying full regard to the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence and the consideration that the jury has had the benefit of having seen and heard the witnesses.
7. Ground 3 is without merit.

Darryl Newton's appeal against conviction: conclusion

1. None of the grounds of Darryl Newton's appeal against conviction has a reasonable prospect of success. Leave to appeal should be refused. The appeal must be dismissed.

Joanne Ruthsalz's appeal against sentence: grounds of appeal

1. Joanne Ruthsalz relies on five grounds of appeal.
2. Ground 1 alleges that the trial judge's sentencing discretion miscarried in that his Honour sentenced Joanne Ruthsalz on the basis that she was involved in a 'very serious category of murder'.
3. The particulars of ground 1 assert that Joanne Ruthsalz was unaware that Travis Mills would be burnt in the boot of the car and that she was not physically involved in his burning.
4. Ground 1A alleges, in the alternative to ground 1, that his Honour erred 'when he effectively took into account, and/or had regard to, an aggravating factor not relevant to [Joanne Ruthsalz's] criminality'.
5. The particulars of ground 1A assert that Joanne Ruthsalz was unaware that Travis Mills would be burnt in the boot of the car.
6. Ground 2 alleges that the minimum non-parole period of 24 years imposed on Joanne Ruthsalz was manifestly excessive.
7. Ground 3 alleges that his Honour erred in fact by finding that Joanne Ruthsalz was the 'primary instigator' of the plan to kill Travis Mills.
8. The particulars of ground 3 assert that it was not reasonably open for his Honour to find that her role was that of the 'primary instigator'.
9. Ground 4 alleges that his Honour erred in fact when he sentenced Joanne Ruthsalz on the basis that she intended that Travis Mills would be killed.
10. The particulars of ground 4 assert that:

(a) the State's case was that '[Joanne Ruthsalz] was either an aider or part of an unlawful plan to the extent that she intended to kill or, in the alternative, intended to assault [Travis Mills]';

(b) it was not reasonably open to his Honour to be satisfied beyond reasonable doubt that Joanne Ruthsalz intended that Travis Mills would be killed.

1. On 1 April 2017, Mazza JA referred Joanne Ruthsalz's application for leave to appeal to the hearing of the appeal.
2. We will begin by recounting relevant aspects of the trial judge's sentencing remarks in relation to Joanne Ruthsalz.
3. It will be convenient then to consider grounds 1 and 1A, next ground 3, then ground 4 and, finally, ground 2.

Joanne Ruthsalz's appeal against sentence: the trial judge's sentencing remarks in relation to Joanne Ruthsalz

1. The trial judge found that Joanne Ruthsalz was 'the primary instigator' of the plan to kill Travis Mills. She was driven by hatred and by anger. She encouraged Justine Campbell to believe that Seleena Ruthsalz and Ruby were being abused. She 'pushed for Travis [Mills] to be gotten rid of'. His Honour did not accept that Joanne Ruthsalz merely wanted Travis Mills to be assaulted. She wanted 'a more permanent solution and [she] pressed hard for it'. His Honour also found that Joanne Ruthsalz played a 'coordinating role'. She sought to ensure that there was 'distance' between her and those who would carry out the killing. This included obtaining and using a mobile telephone subscribed for in a false name to communicate with Justine Campbell. Joanne Ruthsalz arranged for Seleena Ruthsalz to come to her house on the night of 2 April 2015 in the expectation that the killing would occur on that night. Joanne Ruthsalz knew that the keys to the Seville Grove home were required. His Honour accepted that Joanne Ruthsalz may not have known the manner in which the killing was to be effected; in particular, that the car was to be burned with Travis Mills in it, but she did know and intend that he would be killed. She also intended by her acts to assist in the killing [55].
2. His Honour had received victim impact statements from the parents, siblings and grandparents of Travis Mills. His Honour noted that Travis Mills' family had experienced continuing pain and suffering. Travis Mills was murdered on Ruby's birthday. The shock experienced by Travis Mills' family and friends at his sudden death was compounded by the dreadful manner in which he met his death [57] - [61].
3. The trial judge referred to the extensive written submissions he had received from defence counsel for Joanne Ruthsalz and, also, a letter which Joanne Ruthsalz had written to his Honour, several references as to her character and a pre-sentence report. Joanne Ruthsalz had a prior criminal record. It was not extensive but included some prior convictions in relation to drugs. She was not a person of prior good character.
4. Joanne Ruthsalz was born on 22 April 1971. She was aged 43 at the time of the offending and was 45 when sentenced. His Honour took into account that Joanne Ruthsalz willingly assisted her friends when they were in difficulty. His Honour also said that, in relation to the risk of reoffending, that it was 'difficult to reach any conclusion as to whether you present a meaningful threat to the safety of the community and I put that factor to one side' [88].
5. The trial judge noted that, for sentencing purposes, there were a number of aggravating factors. First, the murder was a planned and premeditated killing. Secondly, Travis Mills was killed in his home, a place where he was entitled to feel safe. Thirdly, he was killed with extreme brutality. He was beaten and then burnt in the boot of his car. Fourthly, there was 'nothing by way of provocation for [the] killing'. Fifthly, Travis Mills was attacked by two men (that is, Darryl Newton and Darren Campbell). He was outnumbered. His attackers were 'in some way' armed. Sixthly, after the killing, efforts were made to conceal what had occurred. There was a clean-up at the Seville Grove home and a number of items from the crime scene were disposed of. There were efforts to deceive the police [91] - [95].
6. The trial judge said that the aggravating factors, in combination, placed the offending into a 'very serious category of murder' [96].

Joanne Ruthsalz's appeal against sentence: grounds 1 and 1A: counsel for Joanne Ruthsalz's submissions

1. Counsel for Joanne Ruthsalz submitted that it was not reasonably open to the trial judge to sentence Joanne Ruthsalz on the basis that 'her criminality was such that she was involved in a "very serious category of murder"' because his Honour had found that she was not involved in, and had no knowledge of, 'the fact [Travis Mills] was to be incinerated'. According to counsel, Joanne Ruthsalz 'fell to be sentenced on a lesser factual basis that excluded taking that aggravating factor into account'.

Joanne Ruthsalz's appeal against sentence: grounds 1 and 1A: their merits

1. The post-mortem examination revealed that Travis Mills was breathing when the fire began. It was not known whether he was conscious at that time.
2. The trial judge found that Joanne Ruthsalz may not have known the manner in which the killing was to be effected; in particular, that the car was to be burned with Travis Mills in it. However, his Honour found that Joanne Ruthsalz did know and intend that Travis Mills would be killed and that she intended by her acts to assist in the killing.
3. Joanne Ruthsalz had been party to a plan which involved Travis Mills being surprised in his home and then killed and his body disposed of. The State did not allege, and there was no evidence adduced at the trial, that the plan involved a particular means or method of assault or that Travis Mills would be killed by a particular mechanism.
4. There was no evidence that the offenders who carried out the killing (that is, Darryl Newton and Darren Campbell) knew that Travis Mills was alive when they caused him to be burnt in the boot of his car. Joanne Ruthsalz was not sentenced on the basis that she knew that Travis Mills was alive when he was burned. None of the offenders was sentenced on that basis.
5. Counsel for Joanne Ruthsalz's submission that the trial judge found that '[Joanne Ruthsalz] was not a party to that aspect of the offending' (that is, Travis Mills being burned in the boot of his car) is incorrect. The effect of the jury's verdict was that Joanne Ruthsalz was criminally responsible for the act of killing.
6. By s 6(1) of the Sentencing Act 1995 (WA), a sentence imposed on an offender must be commensurate with the seriousness of the offence. This is a fundamental sentencing principle. Section 6(2) provides that the seriousness of an offence must be determined by taking into account the statutory penalty for the offence (par (a)); the circumstances of the commission of the offence, including the vulnerability of any victim of the offence (par (b)); any aggravating factors (par (c)); and any mitigating factors (par (d)). By s 7(1), aggravating factors are those factors which, in the court's opinion, increase the culpability of the offender. Section 7(2) provides that an offence is not aggravated by the fact that the offender pleaded not guilty to it (par (a)); the offender has a criminal record (par (b)); or a previous sentence has not achieved the purpose for which it was imposed (par (c)). By s 8(1), mitigating factors are those factors which, in the court's opinion, decrease the culpability of the offender or decrease the extent to which the offender should be punished.
7. The circumstances of the commission of the offence of murder included Travis Mills having been beaten and then burned in the boot of his car. Those circumstances were relevant to the seriousness of the offence to which Joanne Ruthsalz was a party. Although she may have been unaware of the particular mechanism by which Travis Mills would be killed, Joanne Ruthsalz was nevertheless morally and legally culpable for the act of killing, including the mechanism by which it occurred, as a result of her having been involved in the plan to kill him. Joanne Ruthsalz did not '[fall] to be sentenced on a lesser factual basis that excluded taking ... into account' the fact that Travis Mills was incinerated.
8. If Joanne Ruthsalz had known that Travis Mills was to be incinerated or that he was alive when he was burned, her knowledge of those matters would have been an aggravating factor.
9. His Honour considered carefully the relative culpability of each of the offenders. The different minimum non-parole periods reflect the different sentencing factors applicable to each offender. His Honour did not err as alleged in grounds 1 and 1A. In any event, we are satisfied, generally for the reasons we will give in considering ground 2, that a different minimum non-parole period should not have been imposed. See s 31(4)(a) of the Criminal Appeals Act.
10. Grounds 1 and 1A are without merit.

Joanne Ruthsalz's appeal against sentence: ground 3: counsel for Joanne Ruthsalz's submissions

1. Counsel for Joanne Ruthsalz submitted that it was not reasonably open to the trial judge to be satisfied beyond reasonable doubt that Joanne Ruthsalz was the 'primary instigator' of the plan to kill Travis Mills.
2. Counsel asserted that Joanne Ruthsalz had never met Darryl Newton until the trial. Also, it was asserted that she had only had 'limited casual contact' with Darren Campbell.
3. According to counsel, it was not reasonably open to his Honour to sentence Joanne Ruthsalz on the basis that she was the primary instigator 'if she did not know or barely knew the two primary persons who carried out the attack on [Travis Mills]'. Counsel contended that Joanne Ruthsalz had not organised the assault or the killing with either Darren Campbell or Darryl Newton and she had no knowledge of how the incident would actually take place.
4. It was submitted that, in describing Joanne Ruthsalz as the primary instigator, the trial judge effectively sentenced her on the basis that 'she was the architect of the plan, the one who masterminded, controlled and arranged the whole exercise'. It was submitted that Joanne Ruthsalz's 'position in the relevant offending was not a pivotal role'.

Joanne Ruthsalz's appeal against sentence: ground 3: its merits

1. Counsel for Joanne Ruthsalz's submissions on ground 3 were asserted at a high level of generality. Counsel did not engage with the substantial evidence adduced by the State at the trial. As we will explain, on the evidence adduced at the trial, the trial judge was entitled to be satisfied beyond reasonable doubt that Joanne Ruthsalz was the primary instigator of the plan to kill Travis Mills.
2. At the trial, Justine Campbell gave evidence that Joanne Ruthsalz had wanted Travis Mills Dead and that Joanne Ruthsalz had told her during numerous conversations that he needed to be killed. Justine Campbell said in evidence that Joanne Ruthsalz told her repeatedly, 'No, I want him dead, they've got to kill the cunt. He needs to be gone' and that Joanne Ruthsalz had said words to the effect that Travis Mills needed 'to go' (ts 1668, 1674, 1817, 1818, 1820, 1874, 1886, 1962, 1967 - 1970, 1983, 1993). Justine Campbell gave evidence that Joanne Ruthsalz had lied and manipulated her, including by giving her free methylamphetamine and by taking advantage of her sensitivity to domestic violence, in order to obtain her assistance. Joanne Ruthsalz had 'seduced' her into arranging Travis Mills' death (ts 1804 - 1805, 1825).
3. Luke Newton gave evidence at the trial that during the period of about one or two months before the murder, he heard Joanne Ruthsalz say, on two or three occasions, words to the effect that if Travis Mills kept mistreating her daughter she would kill him. Luke Newton was 'very close' to the Ruthsalz family (ts 420 - 421).
4. It is for Joanne Ruthsalz to demonstrate that it was not open to the trial judge to be satisfied beyond reasonable doubt that she was the primary instigator of the plan to kill Travis Mills.
5. His Honour's finding of fact that Joanne Ruthsalz was the primary instigator of the plan to kill Travis Mills was, to a significant extent, a credibility-based finding. This court must pay full regard to the fact that his Honour had the benefit of seeing and hearing the witnesses. In our opinion, his Honour was entitled, in making findings for the purposes of sentencing, to accept relevant evidence given by Justine Campbell and Luke Newton at the trial. The submissions made on behalf of Joanne Ruthsalz do not demonstrate any basis for concluding otherwise.
6. We are satisfied that there was a proper basis in the evidence for the trial judge's finding that Joanne Ruthsalz's role included being the primary (not the only) instigator of the plan to kill Travis Mills.
7. Ground 3 is without merit.

Joanne Ruthsalz's appeal against sentence: ground 4: counsel for Joanne Ruthsalz's submissions

1. Counsel for Joanne Ruthsalz submitted that the trial judge could not sentence Joanne Ruthsalz on the basis that she intended to kill Travis Mills unless his Honour 'positively rejected' the alternative basis on which the State put its case at trial, namely guilt pursuant to s 8 of the Code.
2. It was submitted that his Honour did not 'positively reject the section 8 scenario' and, as a result, his Honour erred in sentencing Joanne Ruthsalz on the basis that she intended to kill Travis Mills.

Joanne Ruthsalz's appeal against sentence: ground 4: its merits

1. Where an offender has been convicted after trial it is the duty of the judge to determine the facts relevant to sentencing not found by the jury. The trial judge exercises his or her sentencing discretion upon the basis of the offence proved, the factual elements of it necessarily found by the jury in arriving at their verdict and other relevant facts found by the trial judge. However, the view of the facts taken by the trial judge must be consistent with the jury's verdict. Also, findings of fact made by the trial judge which aggravate the offending must be made beyond reasonable doubt. See Cheung v The Queen.[45] In the present case, the trial judge acted in accordance with those principles.
2. His Honour's finding of fact that Joanne Ruthsalz intended to kill Travis Mills was consistent with the jury's verdict. It was also consistent with the primary basis on which the State's case was put at the trial, namely that Joanne Ruthsalz enabled or aided Darren Campbell and Darryl Newton to murder Travis Mills:

(b) by ensuring that Seleena Ruthsalz had a place to stay while Travis Mills remained at the Seville Grove home; and

(c) by organising for the keys to the Seville Grove home to be handed over,

in the knowledge that her conduct would enable or aid in the murder (ts 336).

1. The State's case against Joanne Ruthsalz was also put on the alternative basis that, depending on the jury's findings as to the role she played, Joanne Ruthsalz counselled Justine Campbell or one or more of the other accused to murder Travis Mills; alternatively, Joanne Ruthsalz procured Justine Campbell or one or more of the other accused to murder Travis Mills (ts 336).
2. The State's case against Joanne Ruthsalz was also put, in the further alternative, on the basis that Joanne Ruthsalz and one or more of the other accused formed a common intention to prosecute an unlawful purpose, namely for there to be a burglary at the Seville Grove home and for Travis Mills to be seriously assaulted, and that Travis Mills' murder was a probable consequence of the prosecution of such purpose (ts 336 - 337). The prosecutor asserted in her opening address that the accused who were involved in the burglary and assault would, upon encountering resistance from Travis Mills, do an act with the intention of killing him or with the intention of causing him bodily injury of such a nature as to endanger or be likely to endanger his life (ts 337).
3. It was unnecessary for the trial judge to 'positively reject' in express language 'the section 8 scenario'.
4. We are satisfied that there was a proper basis in the evidence (in particular, the evidence of Justine Campbell and the evidence of Luke Newton) for his Honour's finding that Joanne Ruthsalz intended to kill Travis Mills.
5. Ground 4 is without merit.

Joanne Ruthsalz's appeal against sentence: ground 2: counsel for Joanne Ruthsalz's submissions

1. Counsel for Joanne Ruthsalz emphasised that she did not 'actively' take part in the assault upon Travis Mills or the actions which caused his death. It was submitted that the minimum non-parole period of 24 years imposed by the trial judge was manifestly excessive 'given her relevant involvement in the offending'. In all the circumstances, the minimum non-parole period of 24 years failed properly 'to ... reflect the mix of factors that were required to be considered' in imposing the minimum term.

Joanne Ruthsalz's appeal against sentence: ground 2: its merits

1. A ground of appeal which alleges that a sentence (including a minimum term) is manifestly excessive asserts the existence of an implied or inferred error.
2. It is necessary, in determining whether a minimum term is manifestly excessive, to examine it from the perspective of the principles applicable to the fixing of the length of a non-parole period and the factors which a sentencing judge must take into account when fixing a minimum term. Relevant factors include the maximum penalty for the offence, any upper or lower limits on the available minimum term, the standards of sentencing customarily observed with respect to minimum terms for that offence, the place which the criminal conduct occupies on the scale of seriousness of offences of the kind in question, and the personal antecedents of the offender.
3. A non-parole period is the minimum period of imprisonment that justice requires the offender to serve. It mitigates the offender's punishment in favour of rehabilitation through conditional freedom after imprisonment for the minimum period.[46]
4. In Pedersen v The State of Western Australia,[47] Buss JA made a number of observations (McLure P & Mazza J agreeing) about the determination of the minimum non-parole period where an offender is to be sentenced to life imprisonment for the offence of murder, and the sentencing court has decided (as in the present case) to proceed under s 90(1)(a) of the Sentencing Act and fix a minimum period. It is unnecessary to repeat those observations. See also The State of Western Australia v Stoeski[48] [42] - [45] (Buss JA; Mazza JA & Mitchell J agreeing).
5. The guidance afforded by comparable cases is flexible rather than rigid. The mere fact a non-parole period is within the range of other non-parole periods imposed for similar offending does not necessarily establish that there was an appropriate exercise of the sentencing discretion in the particular case. Similarly, the mere fact a non-parole period is outside the range does not necessarily establish that the exercise of the sentencing discretion in the particular case miscarried.
6. A sentencing range for comparable offences is merely one of the factors to be taken into account in deciding whether a sentence (including a minimum term) is manifestly excessive. A range of sentences customarily imposed is of significance for the purpose of ensuring broad consistency in the sentencing of offenders in broadly comparable cases. However, a sentencing range for comparable cases does not fix the range of a sound exercise of the sentencing discretion in a particular case.
7. When this court dismisses an appeal against sentence, and when it allows an appeal against sentence and resentences the offender, this court's decision on the sentencing outcome does not, of itself, fix the upper or lower limit of the range.
8. The discretion conferred on sentencing judges is, of course, of fundamental importance and this court may not substitute its opinion as to sentencing for that of the sentencing judge merely because it would have exercised the discretion in a different manner.[49]
9. We have reviewed numerous cases in which this court has heard and determined appeals against sentence for murder since the commencement of the Criminal Law Amendment (Homicide) Act 2008 (WA). We have taken into account the sentencing dispositions in Atherden v The State of Western Australia;[50] Austic v The State of Western Australia;[51] Pedersen; The State of Western Australia v O'Kane;[52] The State of Western Australia v Silich;[53] Cockram v The State of Western Australia;[54] Wongawol v The State of Western Australia;[55] Johnston v The State of Western Australia;[56] Goodwyn v The State of Western Australia;[57] Khan v The State of Western Australia;[58] The State of Western Australia v Lee;[59] Silva v The State of Western Australia;[60] Prestidge v The State of Western Australia;[61] Rosewood v The State of Western Australia;[62] Stinson v The State of Western Australia;[63] Mack v The State of Western Australia;[64] Angliss v The State of Western Australia;[65] Smith; Zwerus v The State of Western Australia;[66] The State of Western Australia v Churchill;[67] Crossland v The State of Western Australia;[68] Corbett v The State of Western Australia;[69] Taylor v The State of Western Australia;[70] ; ; and . We have also had regard to other cases cited by counsel for Joanne Ruthsalz. It is unnecessary to reproduce the relevant facts and circumstances or the sentences imposed in the previous cases. There are some comparable features between some of those cases, on the one hand, and the present case, on the other, but there are also distinguishing features.
10. In our opinion, the murder of Travis Mills was a very serious example of offending of that kind. The very serious nature of the offending is reflected in the aggravating factors specified by his Honour in his sentencing remarks. Joanne Ruthsalz was the primary instigator of the plan to kill Travis Mills. She played a coordinating role and intended that he would be killed.
11. There was limited mitigation available to Joanne Ruthsalz. She did not have the benefit of a plea of guilty. She was not youthful or inexperienced for sentencing purposes. She was not of prior good character.
12. In our opinion, the objective seriousness of Joanne Ruthsalz's offending, and the importance of appropriate punishment and general deterrence as sentencing factors, precluded the imposition of a lesser minimum non-parole period.
13. The minimum non-parole period is broadly consistent with the minimum non-parole periods imposed in reasonably comparable cases.
14. We are satisfied, after taking into account and evaluating all relevant facts and circumstances (including the trial judge's findings of fact), and all relevant principles relating to the imposition of a minimum non-parole period and the factors (including the reasonably comparable cases) which a sentencing judge must take into account when fixing a minimum non-parole period, that the minimum non-parole period of 24 years was within the range open to his Honour on a proper exercise of his discretion. The length of the minimum non-parole period was not unreasonable or plainly unjust. The interests of justice did not, in the circumstances, require the imposition of a lesser minimum non-parole period. We would not imply or infer error in the exercise of his Honour's discretion from the sentencing outcome.
15. Ground 2 is without merit.

Joanne Ruthsalz's appeal against sentence: conclusion

1. None of the grounds of Joanne Ruthsalz's appeal against sentence has a reasonable prospect of success. Leave to appeal should be refused. The appeal must be dismissed.

Seleena Ruthsalz's appeal against sentence: grounds of appeal

1. Seleena Ruthsalz relies on three grounds of appeal.
2. Grounds 1 and 1A are identical to Joanne Ruthsalz's grounds 1 and 1A.
3. Ground 2 alleges that the minimum non-parole period of 21 years imposed on Seleena Ruthsalz was manifestly excessive.
4. On 1 April 2017, Mazza JA referred Seleena Ruthsalz's application for leave to appeal to the hearing of the appeal.

Seleena Ruthsalz's appeal against sentence: the trial judge's sentencing remarks in relation to Seleena Ruthsalz

1. The trial judge found that it was not Seleena Ruthsalz's idea to murder Travis Mills but, rather, she was drawn into a plan instigated by Joanne Ruthsalz and Justine Campbell. Seleena Ruthsalz was much younger than the other offenders and the magnitude of what she was involved in was not immediately apparent to her. His Honour said that Seleena Ruthsalz 'may well have initially thought that the plan was to only assault Travis [Mills] and [she] foolishly and selfishly went along with it, however, as time went on, it became apparent to [her] that this was more serious than [she] had thought'. Seleena Ruthsalz's role in the offending was not merely a passive one. She arranged for Travis Mills to be at home, she lied to him in order to keep him at home and she handed over the keys to the Seville Grove home to facilitate the attack upon him. When she left the Seville Grove home on the night of 2 April 2015, Seleena Ruthsalz knew that he would be killed. She continued her involvement in the plan notwithstanding that knowledge. Seleena Ruthsalz intended that her acts would assist in the killing of Travis Mills. However, his Honour accepted that her role was less than that of Joanne Ruthsalz and that Seleena Ruthsalz held the intention to kill for a shorter period [56].
2. Seleena Ruthsalz was born on 17 March 1990. She was aged 25 at the time of the offending and was 26 when sentenced. His Honour took into account, in addition to the submissions made on her behalf by her defence counsel, a letter Seleena Ruthsalz had written to his Honour expressing her remorse. His Honour noted, however, that in the letter she appeared to resile from some of the admissions she had previously made to the police. His Honour also referred to a reference as to Seleena Ruthsalz's character and personality and to a psychological report [67] - [68].
3. Seleena Ruthsalz's childhood was marred by her father's drug and alcohol abuse and by extreme violence perpetrated towards her mother. She experienced an environment of poverty, instability and general neglect. She was anxious during her childhood and was bullied and suffered social isolation at school [68].
4. After leaving school, Seleena Ruthsalz was employed in a number of customer service jobs. The trial judge noted that while she was working in that kind of employment, Seleena Ruthsalz committed a number of offences which resulted in convictions for stealing as a servant. His Honour said that those convictions did not involve violence and 'otherwise [were] not relevant' [70].
5. His Honour observed that some of the statements Seleena Ruthsalz had made to the psychologist were inconsistent with the facts that his Honour had found and with what she had told the police.
6. The trial judge said that there had been some indications of remorse by Seleena Ruthsalz, but that was 'tempered by concern for the predicament in which [she had] placed [herself]' [94].

Seleena Ruthsalz's appeal against sentence: grounds 1 and 1A: counsel for Seleena Ruthsalz's submissions

1. Counsel for Seleena Ruthsalz's submissions in support of grounds 1 and 1A were in substance identical to the submissions he made in support of Joanne Ruthsalz's grounds 1 and 1A.

Seleena Ruthsalz's appeal against sentence: grounds 1 and 1A: their merits

1. We are of the opinion, generally for the reasons we have given in relation to grounds 1 and 1A of Joanne Ruthsalz's appeal against sentence, that grounds 1 and 1A are without merit.
2. We merely note that Seleena Ruthsalz was sentenced on the basis that she played a lesser role in the offending than Joanne Ruthsalz, Darryl Newton and Darren Campbell. In particular, Seleena Ruthsalz did not carry out the killing (that was done by Darryl Newton and Darren Campbell) and she was not 'the', or a, 'primary instigator' of the offence (unlike Joanne Ruthsalz). As a result, she received a lesser sentence, namely life imprisonment with a minimum non-parole period of 21 years. By contrast, the other co-offenders (except Justine Campbell, who had pleaded guilty and given evidence as a State witness) were sentenced to life imprisonment with a minimum non-parole period of 24 years.

Seleena Ruthsalz's appeal against sentence: ground 2: counsel for Seleena Ruthsalz's submissions

1. Counsel for Seleena Ruthsalz emphasised that she did not 'actively' take part in the assault upon Travis Mills or the actions which caused his death. It was submitted that the minimum non-parole period of 21 years imposed by the trial judge was manifestly excessive having regard to her relevant involvement in the offending. Counsel argued that the minimum non-parole period 'failed to properly reflect the mix of factors that were required to be considered' [125]; 'is relatively high considering the 12 to 20-year non-parole period imposed in murder cases arguably of similar or greater seriousness' [126]; and was unreasonable or plainly unjust because 'her role [was] less than that of her mother' [127].

Seleena Ruthsalz's appeal against sentence: ground 2: its merits

1. We repeat what we have written at [306] - [314] above in relation to ground 2 of Joanne Ruthsalz's appeal against sentence.
2. As we have mentioned, in our opinion, the murder of Travis Mills was a very serious example of offending of that kind. The very serious nature of the offending is reflected in the aggravating factors specified by his Honour in his sentencing remarks.
3. Seleena Ruthsalz was sentenced on the basis that she played a lesser role than that of Joanne Ruthsalz. Nevertheless, Seleena Ruthsalz played a significant role in effectuating Travis Mills' killing. Her role was not merely passive. She formed an intention to kill. Seleena Ruthsalz received a lesser sentence than Joanne Ruthsalz because Joanne Ruthsalz formed an intention to kill earlier than Seleena Ruthsalz and because Joanne Ruthsalz was the primary instigator of the killing.
4. We have had regard to the sentencing dispositions in the previous cases we have listed at [314] above. We have also had regard to other cases cited by counsel for Seleena Ruthsalz.
5. There was limited mitigation available to Seleena Ruthsalz. She did not have the benefit of a plea of guilty. She was aged 25 when the offending occurred and, accordingly, youth was not a sentencing factor of any significance. She was not of prior good character.
6. In our opinion, the objective seriousness of Seleena Ruthsalz's offending, and the importance of appropriate punishment and general deterrence as sentencing factors, precluded the imposition of a lesser minimum non-parole period.
7. The minimum non-parole period is broadly consistent with the minimum non-parole periods imposed in reasonably comparable cases.
8. We are satisfied, after taking into account and evaluating all relevant facts and circumstances (including the trial judge's findings of fact), and all relevant principles relating to the imposition of a minimum non-parole period and the factors (including the reasonably comparable cases) which a sentencing judge must take into account when fixing a minimum non-parole period, that the minimum non-parole period of 21 years was within the range open to his Honour on a proper exercise of his discretion. The length of the minimum non-parole period was not unreasonable or plainly unjust. The interests of justice did not, in the circumstances, require the imposition of a lesser minimum non-parole period. We would not imply or infer error in the exercise of his Honour's discretion from the sentencing outcome.
9. Although we would grant leave to appeal on ground 2, the ground has not been made out.

Seleena Ruthsalz's appeal against sentence: conclusion

1. None of the grounds of Seleena Ruthsalz's appeal against sentence have been made out. Leave to appeal should be refused on grounds 1 and 1A. Leave to appeal should be granted on ground 2. The appeal must be dismissed.

Darryl Newton's appeal against sentence: grounds of appeal

1. Darryl Newton relies on two grounds of appeal.
2. Ground 1 alleges that the trial judge's sentencing discretion miscarried in that his Honour sentenced Darryl Newton 'on facts not sufficiently supported by the evidence relevant to [his] involvement and culpability'.
3. Ground 2 alleges that the minimum non-parole period of 24 years imposed on Darryl Newton was manifestly excessive.
4. On 21 August 2017, Mazza JA referred Darryl Newton's application for leave to appeal to the hearing of the appeal.

Darryl Newton's appeal against sentence: the trial judge's sentencing remarks in relation to Darryl Newton

1. The trial judge found that the role of Darren Campbell and Darryl Newton was to carry out the killing. That involved not only the acts on the night in question, but also preparations in the preceding days, including gathering information and performing 'the earlier drive by[s]'. The obtaining of the keys to the Seville Grove home showed that the plan was to surprise Travis Mills in his home late at night so that Darren Campbell and Darryl Newton would have an advantage over him. That advantage was also ensured by Darren Campbell and Darryl Newton being together and being armed in some manner. The obtaining of petrol before the attack on Travis Mills showed that the burning of his car was planned. It was a premeditated murder. It was carefully planned and executed. Each of Darren Campbell and Darryl Newton intended to kill Travis Mills that night [53].
2. Darryl Newton was born on 9 July 1967. He was aged 47 at the time of the offending and was 49 when sentenced. His Honour noted that Darryl Newton was married. He had three children by the marriage who were nearly adults. He was living with his wife and children at the time of the offending. Darryl Newton has a prior criminal record, but there was nothing of relevance. In particular, he had no history of violent offending.
3. The trial judge accepted that, to some extent, there was no motive on Darryl Newton's part to be involved in the offending. He had 'nothing to gain'. However, his Honour observed that, in many respects, that made his involvement 'somewhat chilling'. Darryl Newton was willing to kill another man whom he did not know for no other reason than to assist a friend [79].

Darryl Newton's appeal against sentence: ground 1: counsel for Darryl Newton's submissions

1. Counsel for Darryl Newton submitted that the trial judge found, for the purposes of sentencing Darryl Newton, that:

(a) Justine Campbell had recruited Darryl Newton to a plan.

(b) Darryl Newton 'acted together' with Darren Campbell.

(c) Darryl Newton prepared for the offence by gathering information, including a photograph of Travis Mills, the address of the Seville Grove home, the colour and make of Travis Mills' car, undertaking the 'drive by[s]' of the Seville Grove home, obtaining the keys to the Seville Grove home and purchasing petrol from the Beeliar service station.

(e) Darryl Newton participated in or witnessed the assault of Travis Mills.

(f) Darryl Newton was in contact with Justine Campbell during the evening of 2 April 2015.

(g) Darryl Newton knew, in advance, the method that would be used to kill Travis Mills.

(h) Darryl Newton was aware that Travis Mills was alive when placed in the boot of his car.

(i) Darryl Newton was aware that Travis Mills was alive when his car was set on fire.

(j) Darryl Newton spoke to Darren Campbell and Justine Campbell about discarding his sneakers after the offence because they were covered with Travis Mills' blood.

1. According to counsel, on the evidence at the trial, none of those findings could be made beyond reasonable doubt and his Honour therefore erred in making the findings. Consequently, his Honour's sentencing discretion miscarried.

Darryl Newton's appeal against sentence: ground 1: its merits

1. Justine Campbell was an important State witness. Her evidence was relevant to several of the findings of fact which are challenged in ground 1. At the trial, Darryl Newton gave evidence in his defence. His case was that, although he performed some acts which assisted practically with Travis Mills' killing, he did so unknowingly. The evidence of Justine Campbell was radically different from the evidence of Darryl Newton. It was necessary for his Honour, in carrying out the sentencing process, to make findings of fact. The making of those findings involved an evaluation of Justine Campbell's and Darryl Newton's credibility and reliability as witnesses.
2. Counsel for Darryl Newton's submissions in support of ground 1 made extensive reference to Darryl Newton's evidence. Given the trial judge's directions to the jury, it was implicit, in their verdict of guilty, that the jury rejected, beyond reasonable doubt, Darryl Newton's evidence that sought to explain his conduct. See [194] above. His Honour was entitled and, indeed, obliged to sentence Darryl Newton on that basis. Counsel's submissions in support of ground 1 failed adequately to grapple with this fundamental issue.
3. As to the finding that Justine Campbell recruited Darryl Newton to a plan:

(a) Justine Campbell gave evidence to the effect that she had instructed Darryl Newton, in their first conversation in about mid-March 2015, that she had wanted Travis Mills (although she did not at that stage name him) to get 'a touch along' by way of a broken leg or a kick in the head. She did not tell Darryl Newton that she wanted Travis Mills killed. Darryl Newton said he could help if she needed help (ts 1670, 1671, 1818, 1820).

(b) Justine Campbell said in evidence that during her second conversation with Darryl Newton she told him that Travis Mills had begun to hurt Ruby. Darryl Newton replied that that behaviour was 'not on' (ts 1675).

(c) Justine Campbell said in evidence that Darryl Newton was her friend. He wanted to assist her and he knew that it involved killing Travis Mills. About a week to 10 days before the murder, Justine Campbell and Darryl Newton spoke about the need to have Travis Mills killed. She never discussed with Darryl Newton how he was to be killed (ts 1646, 1682 - 1683). Justine Campbell had about five or six conversations with Darryl Newton about having Travis Mills killed (ts 1682, 1761). Darryl Newton spoke to her about him committing the murder with an assistant (ts 1760).

(d) Justine Campbell said in evidence that before Travis Mills was murdered, Darryl Newton was in her shop speaking with Darren Campbell. She then had a conversation with Darren Campbell who said, angrily, '[Darryl Newton's] just involved me. Apparently his mate ... can't go and now you've got me involved' (ts 1676, 1684, 1762 - 1763).

(e) Justine Campbell said in evidence that, on another occasion, she was at her shop with Darryl Newton and Darren Campbell, and one of them asked her for a photograph of Travis Mills and what type of car he drove. She then asked Joanne Ruthsalz for this information. Later, Justine Campbell showed Darryl Newton and Darren Campbell a photograph of Travis Mills and told them what type of car he drove (ts 1687 - 1688, 1763).

(f) Justine Campbell said in evidence that on the night Darryl Newton and Darren Campbell did the first 'drive by' of the Seville Grove home, Justine Campbell texted Darryl Newton and asked him if he was 'all right for tonight' and said that Darren Campbell would put $25 'into his car'. Justine Campbell used Darren Campbell's mobile telephone once or twice to communicate with Darryl Newton in relation to the first 'drive by' (ts 1688 - 1689, 1764 - 1765; exhibit P106, page 95).

(g) On 1 April 2015, at 12.26 am, Justine Campbell sent a text message to Darryl Newton, before the first 'drive by' of the Seville Grove home. The text message said, 'Hey, babe. Darren [Campbell] will be ready to come to yours in about 25 - [30] min. Is it cool if he gives you 20 to $25? You two could go in one of your cars cos he knows our cars' (ts 3254 - 3255).

(h) On 1 April 2015, at 11.10 pm, before the second 'drive by' of the Seville Grove home, Justine Campbell sent a text message to Darryl Newton. The text message said, 'Hey, babe. Darren [Campbell] just asked mekto [sic] text you to make sure you're up for a 4 am adventure in morning' (ts 3256; exhibit P106, page 101). Shortly after 4.00 am, text messages were exchanged between Darren Campbell's mobile telephone and Darryl Newton's mobile telephone (ts 3256 - 3257; exhibit P106, page 102).

(i) On 2 April 2015, at 8.07 pm, there was an exchange of text messages between Darren Campbell's mobile telephone and Darryl Newton's mobile telephone about 'when to go' and, in effect, whether to take Darryl Newton's car (ts 3258; exhibit P106, pages 110 - 112). Also, on that night, there were a series of text messages between Justine Campbell's mobile telephone and Darren Campbell's mobile telephone between 10.12 pm and 12.19 am, which included an enquiry by Justine Campbell as to whether it was 'okay' for Seleena Ruthsalz to return to the Seville Grove home (ts 3256; exhibit P106, pages 113 - 115).

1. In our opinion, it was open to his Honour, on the evidence and the jury's verdict, to be satisfied beyond reasonable doubt that Justine Campbell recruited Darryl Newton to join a plan to kill Travis Mills, and that Darryl Newton was involved in the plan. Indeed, we consider that, given the State's case at the trial and the jury's verdict of guilty, the finding that Darryl Newton was involved in the plan was inevitable.
2. As to the finding that Darryl Newton 'acted together' with Darren Campbell, the trial judge said, in his sentencing remarks, in relation to Darryl Newton and Darren Campbell:

Whilst it is not possible to determine which of you inflicted the injuries to Travis [Mills] and which of you lit the fire, that is not significant because I am satisfied that you acted together in doing these things and that you are equally responsible for them.

...

As I have already said, it is not possible to determine which of you did the relevant acts, but I am satisfied that you acted together [34], [40].

1. In our opinion, it was open to his Honour, on the evidence and the jury's verdict, to be satisfied beyond reasonable doubt that Darryl Newton 'acted together' with Darren Campbell, in that:

(a) Darryl Newton gave evidence at the trial to the effect that, in a practical sense, he aided in the murder by driving Darren Campbell to the Seville Grove home; waiting in the car while Darren Campbell entered the home; following Darren Campbell to Hilbert; and then driving Darren Campbell to his home (ts 3204).

(b) Darryl Newton explained in re-examination at the trial that he told lies to the police, when interviewed, because he was scared of being arrested for murder and to protect himself and Darren Campbell (ts 2341 - 2342).

(c) CCTV footage at the Beeliar service station on the night of the murder showed Darryl Newton's car at the service station and Darryl Newton filling a container with petrol (ts 3252).

(d) There was evidence of blood transfer stains and a drop of blood in Darryl Newton's car. Forensic testing of the drop of blood established a DNA profile consistent with being, to a high degree of probability, that of Darren Campbell. This evidence was also relevant to Justine Campbell's assertion in her evidence that Darren Campbell had returned home on the night of the murder with an injured and bleeding leg.

(e) His Honour directed the jury in his summing up, as follows:

If you accept Darryl Newton's evidence then Darren Campbell committed the murder on his own, including attacking Travis Mills in his house and placing him in the boot of the car (ts 3263). (emphasis added)

It was open to the jury to reject this possibility as being contrary to the evidence considered as a whole. It is apparent from the jury's verdict that they did reject the possibility. It was also open to his Honour, for sentencing purposes, to reject the possibility. Indeed, we consider that, given the State's case at the trial and the jury's verdict of guilty, his Honour was bound to do so.

1. As to the finding that Darryl Newton prepared for the offence by gathering information:

(a) The trial judge's finding was supported by Justine Campbell's evidence, the text messages adduced into evidence as part of the State's case and Darryl Newton's own evidence at the trial.

(b) In particular, there was Justine Campbell's evidence of the occasion when she was at her shop with Darryl Newton and Darren Campbell, and one of them asked her for a photograph of Travis Mills and what type of car he drove; that she then asked Joanne Ruthsalz for this information; and that later Justine Campbell showed Darryl Newton and Darren Campbell a photograph of Travis Mills and told them what type of car he drove (ts 1687 - 1688, 1763).

(c) Further, CCTV footage and text messages established that there were two 'drive bys' of the Seville Grove home. Darryl Newton said in evidence that on the night of 31 March 2015, when the first 'drive by' occurred, he was in his car with Darren Campbell (ts 3252). The CCTV footage showed the car passing the Seville Grove home on a number of occasions and in a manner consistent with surveillance activity.

1. As to the finding that Darryl Newton was probably armed, his Honour said, in his sentencing remarks, in relation to Darryl Newton and Darren Campbell:

The exact sequence of events at the house cannot be determined but the following inferences can be drawn. You both entered the house and attacked Travis [Mills]. It is likely that he was caught unawares and that you were both armed. Significant injuries were caused to him, as evidenced by the fact that blood spatter at the house was consistent with impact injuries and a major bloodletting event. He was able to put up some defence because he managed to stab you, Darren Campbell, in the leg, though the injury was quite superficial. He was then either forced or carried into the boot of his car. Whilst he was very likely severely injured at this point, he was not dead [32]. (emphasis added)

1. In our opinion, it was open to the trial judge, on the evidence and the jury's verdict, to be satisfied beyond reasonable doubt that Darryl Newton and Darren Campbell were 'likely ... both armed' when Travis Mills was attacked. That was likely because of the nature of the attack. Travis Mills was surprised while alone in his house at night. Blunt force was used against him. He was then removed from his house and placed in the boot of his car. The blood spatter in the house was consistent with Travis Mills having suffered significant impact injuries and with a major bloodletting event. In any event, even if Darren Campbell was armed and Darryl Newton was not, that would not, in the circumstances, have diminished the seriousness of Darryl Newton's offending.
2. As to the findings that Darryl Newton had participated in or witnessed the assault of Travis Mills and that Darryl Newton had spoken to Darren Campbell and Justine Campbell about discarding his sneakers after the event because they were covered with Travis Mills' blood, his Honour said, in his sentencing remarks, in relation to Darryl Newton:

You, Darryl Newton, and your wife continued to have friendly contact with the Campbells. On one occasion at the store you said you had thrown out the shoes that you had been wearing on that night because they were soaked in Travis [Mills'] blood. Darren Campbell heard this and told you not to talk about it ever again. He said it was done and to forget about it.

...

You, Darryl Newton, were also interviewed on 13 May 2015. You denied any involvement whatsoever. You maintained this even after being shown CCTV footage of your vehicle in the vicinity of the Seville Grove house. You denied that the car that was shown on the footage was yours, when plainly it was. At trial you did not persist with these lies. Rather you said that whilst you had been involved, it was only to assist in what you understood was an insurance job. That is, the burning of a car of a willing owner who wanted to make a fraudulent insurance claim. You said you were involved in burning the car, but not in any assault on Travis Mills and that you did not know he was in the boot of the car when it was burned. This evidence was plainly rejected by the jury. In my view, that is unsurprising as it was a story that lacked any credibility [45], [48]. (emphasis added).

1. In our opinion, it was open to the trial judge, on the evidence and the jury's verdict, to be satisfied beyond reasonable doubt that Darryl Newton had participated in the assault of Travis Mills and that, after the murder, Darryl Newton had told Darren Campbell and Justine Campbell that he had discarded his sneakers because they were covered with Travis Mills' blood. Justine Campbell gave evidence at the trial as to Darryl Newton's admission against interest about the blood on his sneakers. Also, as the judge found and was entitled to find, Travis Mills was surprised while alone in his house at night; blunt force was used against him; and the blood spatter in the house was consistent with Travis Mills having suffered significant impact injuries and a major bloodletting event.
2. As to the finding that Darryl Newton was in contact with Justine Campbell during the evening of 2 April 2015, his Honour said, in his sentencing remarks:

There were telephone and text communications between you all that night that show that you remained in close contact. You, Seleena Ruthsalz, were anxious to return home and left your mother's at around midnight. Shortly after this you, Darren Campbell, called Justine Campbell to tell her that Seleena [Ruthsalz] should not go home on her own as the house was a mess and needed to be cleaned up. Justine Campbell relayed this to Joanne Ruthsalz, who then rang Seleena Ruthsalz and told her to pull over [37]. (emphasis added)

1. In our opinion, it was open to the trial judge, on the evidence and the jury's verdict, to be satisfied beyond reasonable doubt that Darryl Newton was in contact with Justine Campbell (either directly or indirectly through Darren Campbell) during the evening of 2 April 2015.
2. The State adduced evidence of communications between the offenders, including Darryl Newton, on the night of the murder (that is, on the night of 2 April 2015). His Honour referred to the communications in the course of his summing up (ts 3257 - 3261). In particular:

(a) Darryl Newton and Darren Campbell exchanged text messages between 8.07 pm and 9.21 pm about the time at which they would go and 'deal with this' (ts 1234, 3258; exhibit P106, pages 110 - 112); and

(b) there was a telephone conversation between Darren Campbell and Justine Campbell at 10.12 pm and, later, an exchange of text messages between Darren Campbell and Justine Campbell as to whether Seleena Ruthsalz could now return to the Seville Grove home (ts 2302, 3258, 3260; exhibit P106, pages 113 - 115).

1. On Darryl Newton's evidence at the trial, he was in company with Darren Campbell when the telephone conversation between Darren Campbell and Justine Campbell occurred at 10.12 pm and, later, when the text messages between Darren Campbell and Justine Campbell were exchanged (ts 2302).
2. In any event, even if the trial judge was in error in finding that Darryl Newton was in contact with Justine Campbell during the evening of 2 April 2015, we are satisfied that a different sentence should not have been imposed. See s 31(4)(a) of the Criminal Appeals Act.
3. As to counsel for Darryl Newton's assertions to the effect that Darryl Newton was sentenced on the basis that he knew, in advance, the method that would be used to kill Travis Mills, that he was aware that Travis Mills was alive when placed in the boot of his car and that he was aware that Travis Mills was alive when his car was set on fire:

(a) His Honour sentenced Darryl Newton, appropriately, on the basis that the aggravating factors enumerated by his Honour, in combination, placed the offending into a 'very serious category of murder' [96].

(b) The post-mortem examination of Travis Mills' body established that he was still breathing when the fire began, although it was unknown whether he was conscious at that time [36].

(c) His Honour did not state or imply that Darryl Newton was aware that Travis Mills was alive when placed in the boot of his car or when his car was set on fire. His Honour did not sentence Darryl Newton on the basis that he was aware of those facts.

1. Darryl Newton and his co-offenders had been party to a plan which involved Travis Mills being surprised in his home, killed and his body disposed of [22]. It was not alleged at the trial, and his Honour did not find for the purposes of sentencing, that the plan included or required that a particular means or method would be used to kill Travis Mills. None of the offenders was sentenced on the basis that he or she knew, in advance, the method that would be used to kill Travis Mills.
2. By s 6(2)(b) of the Sentencing Act, the trial judge was bound to take into account, in sentencing Darryl Newton, the circumstances of the commission of the offence. His Honour was therefore required to sentence Darryl Newton having regard to the fact that Travis Mills was burned alive in the boot of his car. Darryl Newton was morally and legally culpable for killing Travis Mills including the particular means or method by which he was killed.
3. If Darryl Newton had known that Travis Mills was to be incinerated or that he was alive when he was burned, his knowledge of those matters would have been an aggravating factor.
4. Ground 1 is without merit.

Darryl Newton's appeal against sentence: ground 2: counsel for Darryl Newton's submissions

1. Counsel for Darryl Newton submitted that the minimum non-parole period of 24 years imposed by the trial judge was manifestly excessive having regard to the 'criminality involved' in the offending, Darryl Newton's antecedents and sentences imposed in comparable cases.

Darryl Newton's appeal against sentence: ground 2: its merits

1. We repeat what we have written at [306] - [314] above in relation to ground 2 of Joanne Ruthsalz's appeal against sentence.
2. As we have mentioned, we are of the opinion that the murder of Travis Mills was a very serious example of offending of that kind. The very serious nature of the offending is reflected in the aggravating factors specified by his Honour in his sentencing remarks.
3. The trial judge said in his sentencing remarks in relation to the role of Darren Campbell and Darryl Newton in the killing:

In regard to you, Darren Campbell and you, Darryl Newton your role was to carry out the killing. This involved not only the acts of the night, but also preparations in the preceding days, including gathering information and performing the earlier drive by. The obtaining of the keys shows that the plan was to surprise Travis Mills in his home late at night so that you would have an advantage over him. That advantage was also ensured by being together and being armed in some manner. The obtaining of fuel beforehand shows that the burning of the vehicle was planned. This was a premeditated murder. It was carefully planned and executed. You each intended to kill Travis Mills that night [53].

1. We have had regard to the sentencing dispositions in the previous cases we have listed at [314] above. We have also had regard to other cases cited by counsel for Darryl Newton.
2. There was limited mitigation available to Darryl Newton. He did not have the benefit of a plea of guilty. He was aged 47 when the offending occurred and, accordingly, was not youthful or inexperienced for sentencing purposes.
3. In our opinion, the objective seriousness of Darryl Newton's offending, and the importance of appropriate punishment and general deterrence as sentencing factors, precluded the imposition of a lesser minimum non-parole period.
4. The minimum non-parole period is broadly consistent with the minimum non-parole periods imposed in reasonably comparable cases.
5. We are satisfied, after taking into account and evaluating all relevant facts and circumstances (including the trial judge's findings of fact), and all relevant principles relating to the imposition of a minimum non-parole period and the factors (including the reasonably comparable cases) which a sentencing judge must take into account when fixing a minimum non-parole period, that the minimum non-parole period of 24 years was within the range open to his Honour on a proper exercise of his discretion. The length of the minimum non-parole period was not unreasonable or plainly unjust. The interests of justice did not, in the circumstances, require the imposition of a lesser minimum non-parole period. We would not imply or infer error in the exercise of his Honour's discretion from the sentencing outcome.
6. Ground 2 is without merit.

Darryl Newton's appeal against sentence: conclusion

1. Neither of the grounds of Darryl Newton's appeal against sentence has a reasonable prospect of success. Leave to appeal should be refused. The appeal must be dismissed.

Justine Campbell's appeal against sentence: the ground of appeal

1. The sole ground of appeal relied on by Justine Campbell alleges that the trial judge's exercise of the sentencing discretion miscarried.
2. The particulars of the ground assert that, in deciding that life imprisonment would not 'be clearly unjust given the circumstances of the offence and the person' (s 279(4) of the Code), his Honour erred '[in failing to] take into account [Justine Campbell's] guilty plea and cooperation with authorities which included her giving evidence at the trial of [the] co-offenders, one of whom was her husband'.

Justine Campbell's appeal against sentence: the trial judge's sentencing remarks in relation to Justine Campbell

1. The trial judge found that Justine Campbell's role was to coordinate the actions of her co-offenders. She played a pivotal role in the offending 'by acting as the go-between', including by collecting and passing on the keys to the Seville Grove home. Justine Campbell, together with Joanne Ruthsalz, was 'an instigator of these events'. However, his Honour accepted that Justine Campbell's motivation was to protect Seleena Ruthsalz and Ruby, 'as misguided as that was'. Justine Campbell also recruited Darryl Newton. Although the plan was not initially to kill Travis Mills, Justine Campbell accepted that that became the plan and, accordingly, she intended that he would be killed [54].
2. Justine Campbell was born on 12 December 1970. She was aged 44 at the time of the offending and was 46 when sentenced. His Honour took into account, in addition to the submissions made on her behalf by defence counsel, a pre-sentence report, a psychological report, a psychiatric report, character references and a letter Justine Campbell had written to his Honour.
3. Justine Campbell had been the victim of 'terrible abuse as a young woman at the hands of a partner'. The trial judge accepted that this had been traumatic and had long-term effects upon her mental state. Although Justine Campbell did not suffer from a mental illness, there were indications that she had suffered from post-traumatic stress disorder. She had a particular sensitivity, arising from her background, to any suggestions that another person was a victim of domestic violence [85].
4. His Honour noted that Justine Campbell had 'somewhat belatedly' decided to plead guilty to murder. On 4 July 2016, an 'indication' was given to that effect and on 18 July 2016, she entered a plea of guilty. His Honour also took into account that prior to indicating her plea she had, in an electronically-recorded interview with police, made significant admissions. Her willingness to give evidence as a State witness was a 'very significant mitigating factor'.
5. The trial judge referred to s 279 of the Code and stated that he had been unable to conclude that a sentence of life imprisonment would be unjust for any of the offenders. Indeed, his Honour was of the view that, in all the circumstances, the only appropriate sentence for each offender was life imprisonment [89].
6. His Honour said that if Justine Campbell had not pleaded guilty and cooperated with the authorities she would have received the same sentence as Joanne Ruthsalz (that is, life imprisonment with a minimum non-parole period of 24 years). However, Justine Campbell's plea of guilty and her cooperation were 'weighty [mitigating] factors'. Her cooperation was 'significant' and given at 'some personal risk'. As a result of her cooperation, Justine Campbell would 'serve [her] sentence hard in prison'. Her safety would be at risk and her time in custody would, no doubt, be difficult. Nevertheless, the sentence imposed on Justine Campbell had to reflect the seriousness of her criminal conduct and her role in the offending. His Honour concluded that the appropriate sentence for Justine Campbell was life imprisonment with a minimum non-parole period of 13 years [101].

Justine Campbell's appeal against sentence: the ground of appeal: counsel for Justine Campbell's submissions

1. Counsel for Justine Campbell reiterated in his submissions the assertion made in the particulars of the ground of appeal, namely that in deciding that life imprisonment would not be clearly unjust, given the circumstances of the offence and Justine Campbell, his Honour failed to take into account her guilty plea and cooperation with the authorities.

Justine Campbell's appeal against sentence: the ground of appeal: its merits

1. At the material time, s 279(4) of the Code provided:

A person, other than a child, who is guilty of murder must be sentenced to life imprisonment unless -

(a) that sentence would be clearly unjust given the circumstances of the offence and the person; and

(b) the person is unlikely to be a threat to the safety of the community when released from imprisonment,

in which case the person is liable to imprisonment for 20 years.

1. At the material time, s 90(1)(a) of the Sentencing Act provided that a court that sentences an offender to life imprisonment for murder must set a minimum period of at least 10 years that the offender must serve before being eligible for release on parole.
2. In Gore v The State of Western Australia,[73] Mazza, Mitchell and Beech JJA made the following observations in relation to s 279(4):

(a) Life imprisonment 'must' be imposed unless that sentence would be 'clearly unjust'.

(b) The imposition of a sentence other than life imprisonment for murder will be exceptional.

(c) Whether a sentence is 'clearly unjust' involves an evaluative judgment by the sentencing judge, having regard to all the circumstances of the case.

(d) That judgment must be made by reference to the sentencing principles set out in s 6 of the Sentencing Act and having regard to all the circumstances of the offence and the offender.

(e) The sentence imposed for murder must be commensurate with the seriousness of the offence [40].

1. We do not accept counsel for Justine Campbell's assertion that the trial judge failed to take into account Justine Campbell's guilty plea and cooperation with the authorities in determining that a sentence of life imprisonment would not be 'clearly unjust' given the circumstances of the offence and her circumstances. It is plain, in our opinion, that his Honour did have regard to those mitigating factors. His Honour stated in his sentencing remarks that Justine Campbell's guilty plea and cooperation were deserving of a very significant discount on the sentence she would otherwise have received [51], [86], [101].
2. We repeat what we have written at [306] - [313] above in relation to ground 2 of Joanne Ruthsalz's appeal against sentence.
3. We have reviewed, in the context of Justine Campbell's appeal against sentence, a number of cases in which this court has heard and determined appeals against sentence for murder since the commencement of the Criminal Law Amendment (Homicide) Act 2008 (WA). We have taken into account the sentencing dispositions in numerous previous cases, including Atherden; Johnston; Goodwyn; Kahn and Gore. It is unnecessary to reproduce the relevant facts and circumstances or the sentences imposed in the previous cases. There are some comparable features between some of those cases, on the one hand, and the present case, on the other, but there are also distinguishing features.
4. Counsel for Justine Campbell cited the first instance decision in The State of Western Australia v HAR.[74] In this State, comparable cases, for the purposes of determining whether a sentence in a particular case is unreasonable or plainly unjust, comprise relevant decisions of this court and its predecessor, the Court of Criminal Appeal. In any event, there are significant distinguishing features between Justine Campbell's offending, on the one hand, and the offending of the offender in HAR, on the other. The objective seriousness of Justine Campbell's offending and her culpability were significantly greater than in the case of the offender in HAR.
5. We are satisfied that the facts and circumstances of Travis Mills' murder (including the planned and premeditated nature of the killing) and Justine Campbell's pivotal role in the offending were such that it was not 'clearly unjust' for the trial judge to impose a sentence of life imprisonment, notwithstanding the significant mitigating factors, including her guilty plea and cooperation. All of the significant mitigating factors were properly recognised in fixing the minimum non-parole period of 13 years.
6. The ground of appeal is without merit.

Justine Campbell's appeal against sentence: conclusion

1. The sole ground of Justine Campbell's appeal against sentence does not have a reasonable prospect of success. Leave to appeal should be refused. The appeal must be dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[1] R v Keenan [2009] HCA 1; (2009) 236 CLR 397.

[2] R v Barlow [1997] HCA 19; (1997) 188 CLR 1.

[3] Darkan v The Queen [2006] HCA 34; (2006) 227 CLR 373.

[4] Stuart v The Queen [1974] HCA 54; (1974) 134 CLR 426, 442 - 443 (Gibbs J; Menzies & Mason JJ agreeing).

[6] Keenan [102] (Kiefel J; Hayne J relevantly agreeing and Heydon & Crennan JJ agreeing).

[7] Keenan [83] (Hayne J; Heydon & Crennan JJ agreeing).

[8] Domican v The Queen [1992] HCA 13; (1992) 173 CLR 555.

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

[10] Carroll v The State of Western Australia [2004] WASCA 254 [192] - [194] (Roberts-Smith J; Malcolm CJ & Murray J agreeing);

[11] Walsh v The State of Western Australia [2011] WASCA 119 [57] (McLure P; Buss JA & Hall J agreeing).

[12] Pezzino v The State of Western Australia [2006] WASCA 131 [26] - [27] (Wheeler JA; Martin CJ relevantly agreeing).

[14] Liberato v The Queen [1985] HCA 66; (1985) 159 CLR 507, 515 (Brennan J).

[15] White v The Queen [2006] WASCA 62 [77] - [78].

[16] Moloney v The State of Western Australia [2006] WASCA 193 [9] - [14] (Wheeler JA; McLure JA agreeing), [22] - [30] (Roberts-Smith JA; McLure JA agreeing).

[17] Evans v The State of Western Australia [2012] WASCA 13 [41] - [51] (Mazza JA; McLure P & Buss JA agreeing).

[18] Santos v The State of Western Australia [No 2] [2013] WASCA 39 [46] - [48] (McLure P; Buss & Mazza JJA agreeing).

[19] Cecez v The State of Western Australia [2007] WASCA 260; (2007) 35 WAR 344.

[20] See, in particular, Carr v The Queen [1988] HCA 47; (1988) 165 CLR 314; Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79; Fleming v The Queen [1998] HCA 68; (1998) 197 CLR 250; and Crampton v The Queen [2000] HCA 60; (2000) 206 CLR 161.

[21] Director of Public Prosecutions v Faure [1993] VicRp 87; [1993] 2 VR 497.

[22] Moloney [13]; Ferris v The State of Western Australia [2007] WASCA 69 [40] (Steytler P & McLure JA); Evans [49]; Santos [No 2] [47].

[23] Carr (324 - 325) (Brennan J); Longman (86) (Brennan, Dawson & Toohey JJ); Tully v The Queen [2006] HCA 56; (2006) 230 CLR 234 [123] (Callinan J), [158] (Crennan J).

[24] RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620 [41] (Gaudron A-CJ, Gummow, Kirby & Hayne JJ).

[25] Salmon v The Queen [2001] WASCA 270 [3] (Malcolm CJ), [11] (Kennedy J), [101] (McKechnie J).

[26] Cooper v The State of Western Australia [2010] WASCA 190 [38] (Buss JA); Turner v The State of Western Australia [2014] WASCA 214 [11] (Mazza JA; Hall J agreeing).

[27] Koushappis v The State of Western Australia [2007] WASCA 26; (2007) 168 A Crim R 51 [100], [104].

[28] R v Anderson [2001] NSWCCA 488; (2001) 127 A Crim R 116. See also Azarian v The State of Western Australia [2007] WASCA 249; (2007) 178 A Crim R 19 [114] (Miller JA); Johnson v The State of Western Australia [2008] WASCA 164; (2008) 186 A Crim R 531 [27] - [31] (Buss JA).

[29] Mansfield v The State of Western Australia [2017] WASCA 178; (2017) 52 WAR 233 [131] - [138].

[31] R v Jones [1991] 55 A Crim R 159.

[32] R v Pham [2004] NSWCCA 190.

[33] The State of Western Australia v Tolliday [2004] WASC 231.

[34] Russell v The State of Western Australia [2011] WASCA 246; (2011) 214 A Crim R 326.

[35] M v The Queen [1994] HCA 63; (1994) 181 CLR 487.

[36] Jones v The Queen [1997] HCA 12; (1997) 191 CLR 439, 450 (Gaudron, McHugh & Gummow JJ).

[37] Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559.

[38] Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300 [41] (Gleeson CJ, Gummow, Kirby, Hayne, Callinan & Heydon JJ).

[39] SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400 [14] (French CJ, Gummow & Kiefel JJ).

[40] Morris v The Queen [1987] HCA 50; (1987) 163 CLR 454, 473 (Deane, Toohey & Gaudron JJ); M (492 - 493); SKA [20].

[41] R v Nguyen [2010] HCA 38; (2010) 242 CLR 491 [33] (Hayne, Heydon, Crennan, Kiefel & Bell JJ).

[42] R v Baden-Clay [2016] HCA 35; (2016) 258 CLR 308.

[43] R v Hillier [2007] HCA 13; (2007) 228 CLR 618 [46] (Gummow, Hayne & Crennan JJ).

[44] Campbell v The State of Western Australia [2016] WASCA 156; (2016) 50 WAR 331 [104] - [118].

[45] Cheung v The Queen [2001] HCA 67; (2001) 209 CLR 1 [14] (Gleeson CJ, Gummow & Hayne JJ), [162] - [164] (Callinan J).

[46] Power v The Queen [1974] HCA 26; (1974) 131 CLR 623, 628 - 629 (Barwick CJ, Menzies, Stephen & Mason JJ); Deakin v The Queen [1984] HCA 31; (1984) 58 ALJR 367, 367 (Gibbs CJ, Murphy, Wilson, Brennan & Dawson JJ); Bugmy v The Queen [1990] HCA 18; (1990) 169 CLR 525, 530 - 531 (Mason CJ & McHugh J), 536 (Dawson, Toohey & Gaudron JJ).

[47] Pedersen v The State of Western Australia [2010] WASCA 175.

[48] The State of Western Australia v Stoeski [2016] WASCA 16.

[49] Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 [15] (Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne & Callinan JJ).

[50] Atherden v The State of Western Australia [2010] WASCA 33.

[51] Austic v The State of Western Australia [2010] WASCA 110.

[52] The State of Western Australia v O'Kane [2011] WASCA 24.

[53] The State of Western Australia v Silich [2011] WASCA 135; (2011) 43 WAR 285.

[54] Cockram v The State of Western Australia [2011] WASCA 179.

[55] Wongawol v The State of Western Australia [2011] WASCA 222; (2011) 42 WAR 91.

[56] Johnston v The State of Western Australia [2012] WASCA 18.

[57] Goodwyn v The State of Western Australia [2013] WASCA 141; (2013) 45 WAR 328.

[58] Khan v The State of Western Australia [2013] WASCA 193.

[59] The State of Western Australia v Lee [2013] WASCA 246.

[60] Silva v The State of Western Australia [2013] WASCA 278.

[61] Prestidge v The State of Western Australia [2014] WASCA 16.

[62] Rosewood v The State of Western Australia [2014] WASCA 21.

[63] Stinson v The State of Western Australia [2014] WASCA 72.

[64] Mack v The State of Western Australia [2014] WASCA 207.

[65] Angliss v The State of Western Australia [2015] WASCA 8.

[66] Zwerus v The State of Western Australia [2015] WASCA 174.

[67] The State of Western Australia v Churchill [2015] WASCA 257.

[68] Crossland v The State of Western Australia [2016] WASCA 93.

[69] Corbett v The State of Western Australia [2016] WASCA 97.

[70] Taylor v The State of Western Australia [2016] WASCA 210.

[71] McIntosh v The State of Western Australia [2017] WASCA 45.

[72] Marchesano v The State of Western Australia [2017] WASCA 177; (2017) 52 WAR 176.

[73] Gore v The State of Western Australia [2017] WASCA 163.

[74] The State of Western Australia v HAR [2015] WASCSR 70.