Court of Appeal (WA)|2018-10-12|Before: Buss P, Mazza JA, Beech JA, Hall J

RUTHSALZ -v- THE STATE OF WESTERN AUSTRALIA [2018] WASCA 178 (12 October 2018)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : RUTHSALZ -v- THE STATE OF WESTERN AUSTRALIA [2018] WASCA 178

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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).
The appellant in CACR 196 of 2016 (Justine Campbell) pleaded guilty to Mr Mills' murder.
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.
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.
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;

(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.

Joanne Ruthsalz, Seleena Ruthsalz, Darren Campbell and Darryl Newton have appealed against conviction.
Joanne Ruthsalz, Seleena Ruthsalz, Darryl Newton and Justine Campbell have appealed against sentence.
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

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.
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.
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.
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.
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.
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.
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.
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].
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.
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'.
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].
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.
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.
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.
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.
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'.
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'.
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].
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].
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
Seleena Ruthsalz then sent text messages to Travis Mills as if he were still alive. She feigned anger that he was not at home.
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.

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).

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

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.
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.
At the trial, Darren Campbell's defence was that he had nothing to do with the murder of Travis Mills.
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

Originally, Joanne Ruthsalz relied on four grounds of appeal. Later, her counsel abandoned grounds 1 and 4.
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.
There are two particulars of ground 2.
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'.
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'.
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.
There are two particulars of ground 3.
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'.
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'.
On 1 April 2017, Mazza JA granted leave to appeal on grounds 2 and 3.
It is convenient to consider ground 3 before ground 2.

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

Counsel for Joanne Ruthsalz noted that Dr White had given evidence that the cause of Travis Mills' death was smoke inhalation combined with incineration.
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).
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

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.

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.
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.
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]

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].

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].

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].

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].

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]
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]
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]
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.

In the present case, there were two critical questions.
First, did Joanne Ruthsalz form a common intention with her co-accused to prosecute an unlawful purpose, namely to seriously assault Travis Mills?
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?
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).
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.
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).
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.
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.
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.
Ground 3 of Joanne Ruthsalz's appeal against conviction is without merit.

Joanne Ruthsalz's appeal against conviction: ground 2

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).
Ground 2 of Joanne Ruthsalz's appeal against conviction is without merit.

Joanne Ruthsalz's appeal against conviction: conclusion

Joanne Ruthsalz's appeal against conviction must be dismissed.

Seleena Ruthsalz's appeal against conviction

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.
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.
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).
Ground 2 of Seleena Ruthsalz's appeal against conviction is without merit.
Seleena Ruthsalz's appeal against conviction must be dismissed.

Darren Campbell's appeal against conviction: grounds of appeal

Darren Campbell relies on two grounds of appeal.
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.
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.

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.

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.
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

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.
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.
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.
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

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.
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.
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).
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).

At the trial, Darren Campbell was represented by an experienced and competent criminal defence barrister.
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).
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).
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.
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).
Dr Richard Kain was a State witness at the trial. He was called after Justine Campbell had completed her evidence.
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.
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).
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.
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.
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).
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.
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.
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).
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).

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).
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).

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).

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.
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).

The second matter concerned his Honour's summary and treatment of a conversation referred to by Joanne Ruthsalz in her evidence (ts 3326 - 3327).
The trial judge declined to re-direct the jury on the matters raised by defence counsel for Darren Campbell (ts 3330).
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.
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'.
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).

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)

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]
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.
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.
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.
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).
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.
Ground 1 of Darren Campbell's appeal against conviction is without merit.

Darren Campbell's appeal against conviction: ground 2

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

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.

Darryl Newton relies on three grounds of appeal.
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.
Particular 1.1 of ground 1 asserts that his Honour directed the jury in a manner which unfairly prejudiced Darryl Newton's case.
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;

(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.

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.
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'.
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.
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.
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.
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.

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

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].
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).

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.
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).

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.
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;

RUTHSALZ -v- THE STATE OF WESTERN AUSTRALIA [2018] WASCA 178 (12 October 2018)

At a glance

Court

Decision date

Before

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Judgment (492 paragraphs)

RUTHSALZ -v- THE STATE OF WESTERN AUSTRALIA [2018] WASCA 178 (12 October 2018)

Legislation Cited (6)

Cases Cited (37)