SANDY -v- THE STATE OF WESTERN AUSTRALIA [2024] WASCA 109 (17 September 2024)

1. An overview of the appellant's case at trial is as follows.
2. Defence counsel conceded that the appellant had stabbed the deceased with a knife and that the appellant had caused the deceased's death.
3. The appellant's case was that she was guilty of manslaughter but not guilty of murder. Defence counsel submitted that the jury could not be satisfied beyond reasonable doubt that the appellant had the requisite intent for murder when she stabbed the deceased.
4. The appellant did not give evidence or adduce evidence at the trial.

The appellant's electronically recorded interview with police on 15 November 2020

1. The appellant participated in an electronically recorded interview with police commencing at 7.08 am on 15 November 2020.
2. During the interview the appellant made statements as follows:

(a) The appellant admitted that she was intoxicated when she arrived home on the night in question. She got into a dispute with the deceased and killed her. The appellant explained that she wanted somewhere to sleep when she arrived home. She threatened the deceased who had been asleep in her own bed.

(b) The appellant did not have a bedroom in the house. Usually, she slept on the couch in the lounge room.

(c) The appellant lost control and grabbed a knife.

(d) The appellant did not know whether she swung the knife at the deceased or whether she had stabbed her repeatedly. She did not remember how many times she stabbed her. The appellant did not know where she hit the deceased with the knife. She was not aiming for 'a particular spot'. The appellant denied intending to kill the deceased.

(e) The appellant got the knife from a drawer in the kitchen. She described the knife as a butcher's knife with a brown handle. The appellant's dispute with the deceased concerned the appellant having told the deceased to leave. When asked about the deceased's conduct towards her at about the time of the incident, the appellant asserted that the deceased did not have any cigarettes and would not give her 'speed'. The appellant did not know if that was why she stabbed the deceased. She just went 'mental'. The appellant admitted drinking alcohol and using 'speed'. She had consumed eight or nine cans of Emu Export beer and 15 to 20 units of 'speed'.

The evidence of civilian witnesses called by the State that was relevant to intent

1. Judith Holmes was a carer of the appellant's boyfriend, Mr Akor. Ms Holmes gave evidence that the last time she had seen the appellant at Mr Akor's house was on Saturday, 14 November 2020. On that occasion the appellant looked dishevelled. She said that the appellant usually looked 'gorgeous'. During cross‑examination Ms Holmes said:

(a) She was aware that the appellant had schizophrenia (ts 86).

(b) At about 1.30 pm on 14 November 2020 the appellant looked dishevelled. Her hair was straggly, her make‑up was running and she was sweating. Ms Holmes told the appellant and Mr Akor to have a shower (ts 88).

1. The witness statement of Mr Koroma was read into evidence. Mr Koroma was also Mr Akor's carer. Mr Koroma said that between about 5.15 pm and 5.30 pm on 14 November 2020 the appellant and Mr Akor got into his car. Mr Koroma drove the appellant to her home. He said that the appellant and Mr Akor appeared to be happy and fine. The appellant kissed Mr Akor goodbye before going to the gate of her home.
2. Edward Buck gave evidence that in November 2020 he was living with Mr Sandy, Shane Davis and Magdalene Ugle. He was at home with the appellant on the afternoon of 14 November 2020. In his evidence‑in‑chief, Mr Buck said that he did not recall seeing the appellant drinking. At about 2.00 pm or 2.30 pm the appellant 'seemed okay' (ts 93). He recalled that the appellant was still present late in the evening. He could hear that the appellant was angry about something (ts 93 ‑ 94).
3. Mr Davis gave evidence that he saw the appellant on the day before the deceased died. He was unsure whether the appellant was drinking. He did not think that the appellant was 'pissed off' at anyone (ts 96). Mr Davis accepted in cross‑examination, as a fair proposition, that during the time he had known the appellant she was a 'bit loopy with her conversations' and that it was not unusual for the appellant to be wanting 'speed' (ts 99). Mr Davis accepted in cross‑examination that it was more than likely all of them had been drinking; that he had told the police when he made his witness statement that the appellant 'had a few drinks but she wasn't drunk'; the appellant would have been drinking 'a couple of cans of Emu Export'; and that he had told the police that the appellant had mentioned that her partner at the time had been 'pissing her off' (ts 99).
4. Ms Ugle was in a domestic relationship with Mr Davis. In November 2020 she was living with Mr Davis, Mr Sandy and Mr Buck. She recalled an occasion at night when she was drinking. The appellant was present but Ms Ugle could not recall whether the appellant was drinking. She did not hear the appellant yelling, screaming or being angry (ts 103).
5. Mr Ivanoski last saw the deceased on 14 November 2020 at the house occupied by Ms Ugle, Mr Davis, Mr Sandy and Mr Buck. Mr Ivanoski drove the deceased and the appellant to that house. He did not see the deceased consume any alcohol or drugs. After a while Mr Ivanoski drove the deceased to his house. Later, at between about 9.00 pm and 9.30 pm Mr Ivanoski again drove the deceased to the house occupied by Ms Ugle, Mr Davis, Mr Sandy and Mr Buck. Mr Ivanoski heard the appellant asking the deceased to accompany her to the casino. The deceased declined. Mr Ivanoski drove Mr Sandy to a friend's house and drove the deceased to her house. Mr Ivanoski did not see or hear any argument between the deceased and the appellant. Mr Ivanoski accepted that on the occasions he saw the appellant on 14 November 2020 she was talking to herself, acting 'a bit strange' and looked like she was 'on something' (ts 109).
6. Mr Sandy said in his evidence‑in‑chief that the deceased and the appellant were his first cousins. Shortly before midnight on 14 November 2020 he arrived at their home. The deceased answered the door. Mr Sandy asked her where the appellant was. Mr Sandy wanted to obtain drugs for his 'sister girls' (ts 112). He did not consume any drugs at the home of the deceased and the appellant. He merely had a cup of tea. Mr Sandy then went home. He agreed that during the afternoon on 14 November 2020 the deceased and the appellant had arrived at his home. The deceased had asked him for drugs. The appellant looked like she was 'on speed' (ts 114 ‑ 115). When the appellant came to his home she drank alcohol for about 30 to 60 minutes. However, Mr Sandy admitted in cross‑examination that, when he was at the home of the deceased and the appellant at about midnight on 14 November 2020, he 'had a smoke' of cannabis with the deceased while he was having the cup of tea (ts 117).
7. Ms Taylor‑Sandy lived with the deceased and the appellant at their home. The deceased and the appellant were her aunts. Ms Taylor‑Sandy slept in the main bedroom while the appellant slept in the carport. Ms Taylor‑Sandy said that she was at home during the early hours of the morning on 15 November 2020. Ms Taylor‑Sandy was on the telephone to her cousin, Druscilla Sandy, when she heard the appellant arrive home at 12.33 am. The appellant was 'shouting', 'very loud' and sounded 'very angry' (ts 121).
8. During her examination‑in‑chief, Ms Taylor‑Sandy gave evidence of the following (ts 122 ‑ 123):

(a) Ms Taylor‑Sandy heard banging on the deceased's bedroom door followed by some talking;

(b) Ms Taylor‑Sandy heard the appellant go into the kitchen;

(c) Ms Taylor‑Sandy heard the appellant banging on the deceased's door again and saying that her boyfriend was in the room;

(d) Ms Taylor‑Sandy heard the smashing of a glass;

(e) Ms Taylor‑Sandy heard arguing and grunting and the deceased asking for the police to be called;

(f) Ms Taylor‑Sandy said the deceased came into her room and appeared to be shaking, quite pale, have grey skin and moving slowly; and

(g) Ms Taylor‑Sandy then noticed a gash on the side of the deceased's neck.

1. During her cross‑examination, Ms Taylor‑Sandy gave this evidence:

(a) Ms Taylor‑Sandy was aware that the appellant was upset about sleeping in the carport (ts 125);

(b) there were three separate occasions on which the appellant went to the deceased's bedroom door and banged on the door quite aggressively (ts 128);

(c) on the second occasion the appellant shouted about four times asking where her boyfriend was and sounding distressed (ts 128);

(d) the incident in question was distressing and traumatising and she might not have a perfect recall of what was said and done (ts 131 ‑ 132);

(e) her best recollection at the time she gave her statement to the police was that the appellant said 'I should stab you for that' (ts 133);

(f) after the second occasion she heard someone, whom she thought was the appellant, walking to the kitchen and she heard a drawer open in the kitchen (ts 133);

(g) she then heard the appellant walk to the deceased's bedroom door, yelling for her man and saying that she was going to 'get raped' and killed by the deceased (ts 134);

(h) that was what the appellant always said when she drank alcohol or used drugs (ts 134);

(i) she heard a period of fighting between the appellant and the deceased for about one minute or about one minute 30 seconds before she heard the deceased say 'She has got a knife' (ts 135);

(j) the deceased may have said 'She has got a knife' more than once, but this was said during the third occasion when there was a confrontation between the appellant and the deceased (ts 135);

(k) the appellant had been mentally unwell for a period of time; she could become 'pretty angry', 'rant and rave', 'make no sense' and say things that were 'not rational' (ts 135 ‑ 136);

(l) towards the middle or the end of her telephone call with Druscilla Sandy, Ms Taylor‑Sandy could not concentrate because the appellant and the deceased were both yelling at each other loudly and this frightened her (ts 136);

(m) she understood that both the appellant and the deceased had schizophrenia and that they received injections once a month for that condition (ts 137); and

(n) while the deceased was receiving assistance from the police for her stab wounds, the appellant was 'yelling and ranting' and 'screaming' in the background (ts 137).

1. Katherine Foote is an ambulance officer. She received a request to attend the home of the appellant and the deceased at 1.44 am on 15 November 2020 (ts 144). Ms Foote arrived at their home at 1.52 am (ts 145). She recalled seeing a female person sitting. The female person was 'screaming in an angry way' (ts 146). She was 'yelling and screaming' (ts 146). Ms Foote said that anger from the female person was the main emotion she sensed (ts 148). It appeared to Ms Foote that the female person's 'yelling and carrying on' was directed at a police officer (ts 149).

The evidence of police witnesses called by the State that was relevant to intent

1. Detective First Class Constable Gintare Semetaite arrived at the home of the appellant and the deceased at 1.45 am on 15 November 2020 (ts 151). He was accompanied by First Class Constable Sam Te Nahu (ts 150). They entered the house through the front door. Detective Semetaite heard '[l]oud sounds' coming from a female person in the house (ts 151). He found the female person sitting on a couch. The female person was the appellant (ts 151).
2. Detective Senior Constable Dean Properjohn gave evidence that he went to the home of the appellant and the deceased in company with Detective Senior Constable Christopher Marston after hearing a radio communication at about 1.40 am on 15 November 2020 concerning an incident at the house (ts 159). Detective Properjohn said that Constable Te Nahu located a knife. The knife was between the backrest and the seat of the couch where the appellant had been sitting. Constable Te Nahu pulled the cushions of the couch apart so that he and Detective Properjohn could see where the knife was situated. Detective Properjohn said that the knife was 'on the vertical' between the backrest and the back cushion (ts 161). He accepted that the knife 'might have fallen when the pillow [was] moved back' (ts 161).
3. Constable Te Nahu gave this evidence in cross‑examination about finding the knife and the location of the knife (ts 166 ‑ 167):

When you first are tasked to search the couch, do you actually remove the cushion where [the appellant] had been sitting or you first just looked to see between the back of the couch and the pillow? Do you recall? ‑ ‑ ‑ I think I just took hold of the cushion that she was sitting on and just lifted it up, slightly.

Lifted it up? ‑ ‑ ‑ But I didn't take the thing right off the couch. I just lifted it up. I observed what I saw. I advised the detective. And then I put it down again.

When you first saw it, was the knife effectively secreted, almost like it's standing up on the blade between the back of the couch and where the cushion goes in? ‑ ‑ ‑ I can't recall.

You don't recall? ‑ ‑ ‑ I can't recall, no.

Okay. But when you lifted the cushion up ‑ ‑ ‑ ? ‑ ‑ ‑ Yes.

It appeared to you that it was, then, flat on the base of the couch; is that right? ‑ ‑ ‑ I ‑ ‑ ‑ I can't recall whether it was standing up, as you said, or whether it was lying down. I only lifted the cushion up for a second or two, saw it, advised the detective and then put the cushion back down again.

And you were told by the detective to [leave] it in situ so it could, subsequently, be photographed at some point. Correct? ‑ ‑ ‑ I guess so, yes.

1. The witness statement of Detective Senior Constable Darren Brady was read into evidence (ts 167 ‑ 168). The witness statement reads, relevantly:

On 15 November 2020, I was on duty with Detective Senior Constable Spivey. At approximately 2.20 am, we attended 285 Mirrabooka Avenue, Balga, to respond to a reported stabbing incident. Upon arrival, I observed numerous other police vehicles and a St John Ambulance station sedan parked out the front of the address. I spoke with Detective Senior Constable Marston, who provided me with a briefing. I then observed a female person come out the front door and into the front yard.

This female was in handcuffs. And I know her to be [the appellant], the accused present in court. When I heard the accused speak, I formed the opinion that she was intoxicated. This was based on her speaking at an elevated volume and in a long, droning‑like tone.

1. Detective Semetaite, Detective Properjohn and Detective Marston wore body cameras while they were at the home of the appellant and the deceased. The cameras made video and audio recordings of the appellant and her interactions with police officers. The footage was tendered as part of the State's case at trial and became exhibit 4.1 (ts 154 ‑ 155).

The medical and scientific evidence that was relevant to intent

1. Dr Nermina Vagaja is a forensic pathologist at the State Mortuary (ts 183).
2. On 17 November 2020, Dr Vagaja performed a post‑mortem examination of the deceased. There were two sharp force injuries on the left side of the deceased's neck, which Dr Vagaja described as injury number 1 and injury number 2. There were also some superficial injuries on the deceased's face (ts 184).
3. Dr Vagaja described injury number 1 as a penetrating sharp force injury or stab wound. She explained (ts 185):

So injury number 1 was on the left kind of front and the side of the neck, it was towards the base of the neck, and it was ovoid in shape, and it was roughly parallel with the left clavicle. And it was centred approximately 65 millimetres midline and approximately 15 millimetres from the upper end of the collarbone, approximately 100 millimetres from the left angle of the jaw, approximately 140 millimetres from the external opening ... of the left ear ...

1. Injury number 1 was 40 mm in length and had a gaping of 5 mm. The stab wound 'continued downwards and towards the midline' (ts 186). The jugular vein was not fully cut, but it was severely damaged. The carotid artery was also damaged. There was a 'linear mark' on the second thoracic vertebra which was 'like an incised mark into the surface of the bone'. The stab wound also 'went through the oesophagus' (ts 187). The depth of the wound track was about 9 cm (ts 188).
2. Injury number 2 was 10 mm in length, had a gaping of 1 mm and was 7 mm in depth. The wound was superficial. Injury number 2 was roughly parallel to injury number 1 (ts 189).
3. Dr Vagaja was unable to form an opinion about the order in which the wounds were inflicted (ts 190).
4. The cause of death was the penetrating sharp force injury which constituted injury number 1 (ts 189). Dr Vagaja said that injury number 1 was 'very, very dangerous' to the deceased's life (ts 188). The injury would have been 'potentially survivable' only with 'immediate ... medical help' so that the deceased was able 'to be operated on or [receive] emergency treatment within, say, minutes from being stabbed' (ts 188 ‑ 189). In the absence of medical assistance of that kind the injury was not survivable and the deceased would have died (ts 189).
5. Dr Vagaja said it was very hard to determine the exact degree of force that was required to inflict injury number 1. However, where there is an injury to the bone, the degree of force is 'probably ... not insignificant'. The linear mark on the deceased's second thoracic vertebra involved damage to the bone (ts 188).
6. Dr Vagaja gave this evidence in cross‑examination:

(a) it is possible that the use of a knife with limited force can cause catastrophic if not fatal injuries (ts 196);

(b) she did not know whether injury number 1 and injury number 2 might have been inflicted in 'the one stabbing motion' (ts 196);

(c) bone is involved and it is therefore unlikely that the degree of force required to inflict injury number 1 would have been 'trivial, insignificant, small' (ts 196);

(d) the degree of force required to inflict injury number 1 depends on the sharpness of the knife and the speed of the swing (ts 197); and

(e) the degree of force required to inflict injury number 1 would not be interpreted as 'a small amount of force' (ts 197).

1. The prosecutor asked Dr Vagaja in re‑examination whether, 'if the knife had made contact with the skin ... and somehow those two wounds were caused at the same time', Dr Vagaja 'would ... expect some connection between the two wounds if, say, the knife had moved' (ts 198). Dr Vagaja responded (ts 198):

Well ... what I was imagining in my mind as a possibility was there may have [been] a struggle and one of the attempts may not have worked out, and as part of the struggle the blade may have moved to the other entry point and it continued. So technically speaking these two are different events. Whether they happened as part of the same swing, kind of deflected by struggle, was my understanding was your question, possibly, but I wouldn't be able to tell.

1. Ross Hedley is employed by PathWest Laboratory Medicine. He is a senior forensic scientist. Mr Hedley examined the knife used by the appellant to stab the deceased (ts 199). The knife was 36.5 cm in length. The blade was 23.5 cm in length and 5 cm in width at its widest point (ts 200). A stain obtained from the blade of the knife produced a positive reaction to a presumptive chemical test for blood. DNA from the stain matched the DNA profile of the deceased (ts 201). Another stain obtained from a different part of the blade of the knife also produced a positive reaction to a presumptive chemical test for blood. DNA from the stain also matched the DNA profile of the deceased. The handle of the knife was subjected to a presumptive chemical test for blood and produced a negative reaction. A DNA mixture from a number of contributors was obtained from the handle. Four people contributed to the DNA mixture (ts 202). The chances of finding the DNA profile obtained from the handle was more than 100 billion times more likely if the appellant was a contributor as opposed to her not being a contributor (ts 203).
2. Detective Senior Constable Michael Smirk arranged for a blood sample to be taken from the appellant and for the sample to be sent to the ChemCentre for analysis (ts 207). The blood sample was taken at 2.08 pm on 15 November 2020 (ts 210). On analysis of the sample, no alcohol was detected, but methylamphetamine, amphetamine and cannabis were detected (ts 192).

Counsel for the appellant's submissions on the ground of appeal

1. Counsel for the appellant submitted that there were three alternative inferences open:

(a) First, there was one stabbing 'in the heat of the moment' or a stabbing made 'reflexively in the context of a physical confrontation' between the appellant and the deceased, 'without real thought about what the appellant was intending to achieve'.

(b) Secondly, there was 'a fend off motion' in the course of a struggle between the appellant and the deceased.

(c) Thirdly, there was a stabbing with the requisite intent for murder.

1. It was submitted that the first and second alternative inferences could not properly have been excluded and consequently there must have been a reasonable doubt that the appellant, when she inflicted injury number 1, intended to kill the deceased or intended to inflict a bodily injury that, when viewed objectively, was of such a nature as to endanger or be likely to endanger the deceased's life.
2. First, counsel for the appellant argued:

(a) The appellant was intoxicated and 'to an extent' the intoxication affected her intent. The appellant had drunk eight or nine cans of Emu Export beer and had injected two syringes of 'speed'. A blood test undertaken at about 2.08 pm on 15 November 2020 showed that the appellant had methylamphetamine, amphetamine and cannabis in her system. That was evidence of partial intoxication at the time of the stabbing.

(b) The confrontation between the appellant and the deceased occurred for about one hour. The confrontation flared and simmered during that time.

(c) There were three separate confrontations between the appellant and the deceased in the hour after the appellant returned home. The stabbing occurred during the third confrontation.

(d) There was no evidence as to the exact motion or mechanism by which the appellant inflicted injury number 1. Also, there was no evidence about how the appellant or the deceased was oriented at the time injury number 1 was inflicted.

(e) During re‑examination Dr Vagaja left open a 'deflection by struggle' as a possibility.

(f) Ms Taylor‑Sandy gave evidence that when the appellant arrived home at about 12.33 am on 15 November 2020 the appellant was very loud, shouting and angry. An hour elapsed before injury number 1 was inflicted.

(g) At most, there were two separate wounds and these could have been caused by the one action.

(h) Anger does not, by default, equate to the requisite intent for murder.

1. Secondly, counsel for the appellant argued that the appellant's utterances, as recorded on the body camera worn by Detective Semetaite, were evidence of the appellant's lack of the requisite intent for murder. The appellant was ranting and raving at random about various topics. This ranting and raving indicated a lack of clear thought and a disordered mind. The evidence relied upon by counsel to support his contention that the appellant's infliction of injury number 1 was 'an action without much thought' was as follows (exhibit 4):

(a) During the first 10 minutes of the body worn camera footage the appellant was 'ranting, raving, upset, crying, hysterical, and distressed'.

(b) Some examples from the body worn camera footage include the appellant saying:

(i) 'She's saying she's so called, oh Princess Mary, when Princess Mary doesn't live here';

(ii) 'So called Mary in the room that won't leave the house';

(iii) 'It's all right for Queen Elizabeth ‑ uh, Queen Mary who's not Queen Mary. In the circumstances, I'm Queen of Wales';

(iv) 'She's allowed to rape me ... she's allowed to invade me. I don't like that';

(v) 'I'm gonna threat now. I'm gonna kill her' ‑ after the stab wounds had been inflicted;

(vi) 'Not even Princess of Wales ... so I don't know why she's saying she's Wales when she's not even blood related to her';

(vii) 'I'm also Queen of Wales. I'm Princess Diana'; and

(viii) 'I got two different types of cancer. I got four types of cancer.'

1. Thirdly, counsel for the appellant argued that there was circumstantial evidence that the appellant would 'speak out of turn' or 'act bizarrely'. Consequently, the appellant's declarations of an intent to stab or kill the deceased needed to be viewed against her previous behaviour of saying 'odd or delusional things'. In particular:

(a) Mr Davis stated that the appellant had always been 'a bit loopy with her conversations' (ts 99 ‑ 100).

(b) Mr Ivanoski gave evidence that on a previous occasion he had seen the appellant 'acting strangely' at the front of the house when he went to collect the deceased (ts 109).

(c) Ms Taylor‑Sandy said that the appellant could become 'pretty angry', 'make no sense' and say things that were 'not rational'. For example, on the night in question the appellant was 'talking to herself' when she was in the kitchen (ts 127).

(d) The events leading up to the night of 14 November 2020 indicated that the appellant was not in 'a good state'. Ms Holmes saw the appellant with mascara running down her face (ts 88). Mr Sandy said that the appellant looked like she was 'on speed' (ts 114).

(e) When Detective Marston informed the appellant that she was under arrest on suspicion of murder the appellant had no awareness that the deceased had been seriously injured. She asked, in effect, whether the deceased had been murdered (ts 249).

1. Fourthly, counsel for the appellant said that the location of the injuries on the deceased's neck could possibly indicate an intent to harm someone seriously. The neck is a vulnerable part of the body. However, the injuries to the deceased's neck may not have been inflicted intentionally. It was plausible that the injuries could have been caused by 'a reflex action' or 'in a struggle'. Ms Taylor‑Sandy heard a struggle between the appellant and the deceased which involved movements and grunting (ts 134).
2. Finally, counsel for the appellant submitted that, on the whole of the evidence, the jury must have had a reasonable doubt about the existence of the requisite intent for murder. There was a distinct possibility that an innocent person had been convicted of murder instead of manslaughter.

Counsel for the State's submissions on the ground of appeal

1. Counsel for the State submitted that when this court conducted its own assessment of the evidence at the trial, bearing in mind the advantages enjoyed by the jury, this court should conclude that it was open to the jury to be satisfied beyond reasonable doubt that the appellant's act of stabbing the deceased was accompanied by an intent to cause an injury which endangered, or was likely to endanger, life. The verdict of guilty of murder was not unreasonable.

The ground of appeal: applicable legal principles

1. It is a question of fact whether, having regard to the evidence, a verdict of guilty on which a conviction is based is unreasonable or cannot be supported. See M v The Queen;[1] Zaburoni v The Queen;[2] GAX v The Queen.[3]
2. An intermediate court of appeal (the appellate court) must decide that 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 all the circumstances to permit the verdict to stand. See M (492 ‑ 493); SKA v The Queen.[4]
3. 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. The appellate court's task is not to consider, as a question of law, merely whether there was sufficient evidence to sustain a conviction. See Morris v The Queen.[5]
5. The appellate court, in assessing whether it was open to the tribunal of fact to be satisfied beyond reasonable doubt as to the guilt of the accused, 'must not disregard or discount either the consideration that the [tribunal of fact] is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the [tribunal of fact] has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations': M (493); R v Nguyen;[6] SKA [13].
6. Circumstantial evidence must not, of course, be considered on a piecemeal basis. It must be evaluated in its entirety. See R v Hillier.[7]
7. In R v Baden‑Clay,[8] French CJ, Kiefel, Bell, Keane and Gordon JJ 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, 661, quoted in Barca v The Queen [1975] HCA 42; (1975) 133 CLR 82, 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, 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, 638 [48]. See also Chamberlain v The Queen [No 2] [1984] HCA 7; (1984) 153 CLR 521, 535).

1. In Pell v The Queen,[9] the High Court made these statements about the assessment of the credibility of a witness by a jury, in the context of a ground of appeal which alleges that the jury's verdict was unreasonable or insupportable having regard to the evidence:

[T]he assessment of the credibility of a witness by the jury on the basis of what it has seen and heard of a witness in the context of the trial is within the province of the jury as representative of the community. Just as the performance by a court of criminal appeal of its functions does not involve the substitution of trial by an appeal court for trial by a jury, so, generally speaking, the appeal court should not seek to duplicate the function of the jury in its assessment of the credibility of the witnesses where that assessment is dependent upon the evaluation of the witnesses in the witness‑box. The jury performs its function on the basis that its decisions are made unanimously, and after the benefit of sharing the jurors' subjective assessments of the witnesses. Judges of courts of criminal appeal do not perform the same function in the same way as the jury, or with the same advantages that the jury brings to the discharge of its function. (footnote omitted)

1. The appellate court examines the trial record to ascertain whether, despite the jury's advantage in having seen and heard the witnesses in the context of the trial, the jury, acting rationally, should have entertained a reasonable doubt as to proof of guilt.
2. The appellate court's function is to determine for itself whether the evidence at trial was sufficient in nature and quality to remove any reasonable doubt that the accused was guilty of the offence charged. See Dansie v The Queen.[10] The critical issue is 'whether the court's assessment of the totality of the evidence leaves the court with a reasonable doubt as to guilt which the court cannot assuage by having regard to such advantage as the [fact finding tribunal] can be taken to have had by reason of having seen and heard the evidence at trial': Dansie [16].
3. 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 tribunal of fact to be satisfied beyond reasonable doubt that the accused was guilty. See M (494 ‑ 495); Hillier [20]; Fitzgerald v The Queen;[11] Baden‑Clay [66].
4. The setting aside of a tribunal of fact's verdict of guilty because, having regard to the evidence, it is unreasonable or cannot be supported is a serious step. Trial by the appellate court is not to be substituted for trial by the tribunal of fact. See Baden‑Clay [65] ‑ [66].
5. The appellate court's reasons must disclose its assessment of the capacity of the evidence to support the verdict. See SKA [22] ‑ [24]; BCM v The Queen;[12] GAX [25].
6. The nature and extent of the appellate court's task, in a particular case, will be informed by:

(a) the elements of the offence;

(b) the accused's defence;

(c) the issues in contest at the trial;

(d) the manner in which the trial was conducted;

(e) the way in which the case was ultimately left to the tribunal of fact;

(f) whether the tribunal of fact was a judge (who must state the principles of law that he or she has applied and the findings of fact on which he or she has relied) or a jury (which does not give reasons); and

(g) the particulars of the ground of appeal.

1. Section 26 of the Code provides that '[e]very person is presumed to be of sound mind, and to have been of sound mind at any time which comes in question, until the contrary is proved'.
2. Section 27 of the Code is concerned with the circumstances in which a person is not criminally responsible for an act or omission on account of unsoundness of mind.
3. Section 28(3) provides:

When an intention to cause a specific result is an element of an offence, intoxication whether complete or partial, and whether intentional or unintentional, may be regarded for the purpose of ascertaining whether such an intention in fact existed.

1. Section 279(1) of the Code provides, relevantly:

If a person unlawfully kills another person and -

(a) the person intends to cause the death of the person killed or another person; or

(b) the person intends to cause a bodily injury of such a nature as to endanger, or be likely to endanger, the life of the person killed or another person; or

...

the person is guilty of murder.

1. Section 279(1)(b) is concerned with the subjective intention of an accused to cause bodily injury and with the objective nature of that bodily injury. The provision does not refer to the accused's action or intended action to give effect to his or her subjective intention to cause a bodily injury. The accused must subjectively intend to cause a bodily injury and that bodily injury must be of such a nature as objectively to endanger, or objectively be likely to endanger, the life of the person killed or another person. That is, the bodily injury which is subjectively intended is the bodily injury which must be evaluated to determine whether it is of such a nature as objectively to endanger, or objectively be likely to endanger, life. See Wongawol v The State of Western Australia;[13] Schmidt v The State of Western Australia;[14] Clarke v The State of Western Australia;[15] Birdsall v The State of Western Australia;[16] Turner v The State of Western Australia.[17]
2. In the present case, the State alleged, in effect, that the bodily injury which the appellant subjectively intended to cause was a penetrating sharp force injury to the deceased's neck.
3. At the trial, the appellant's case was conducted on the basis that:

(a) the appellant had in fact inflicted injury number 1 to the deceased's neck with the knife;

(b) the appellant's physical act of stabbing the deceased in the neck with the knife (which occasioned injury number 1) was a willed act; and

(c) no issue arose in relation to accident, insanity or self‑defence.

1. The appellant's case, for the purposes of the appeal, was conducted on the same basis.
2. So, the appellant's physical act of stabbing the deceased in the neck with the knife (which occasioned injury number 1) was an act of her own volition. In other words, the appellant willed that the physical act of stabbing the deceased in the neck with the knife (which occasioned injury number 1) should happen.
3. By s 280 of the Code, if a person unlawfully kills another person under such circumstances as not to constitute murder, the person is guilty of manslaughter. Manslaughter is an alternative verdict on an indictment charging an accused with murder.
4. The critical issue in the appeal is whether the jury's verdict of guilty of murder was unreasonable or cannot be supported, having regard to the evidence, because the jury must have had a reasonable doubt about whether the State had proved to the criminal standard that:

(a) the appellant must subjectively have intended to cause a bodily injury to the deceased; and

(b) that bodily injury must have been of such a nature as objectively to endanger, or objectively be likely to endanger, the life of the deceased.

1. No complaint is made in the appeal about any of the trial judge's directions to the jury.
2. Counsel for the appellant and counsel for the State were agreed that this court should view and listen to the video and audio recordings made by the body cameras worn by Detective Semetaite, Detective Properjohn and Detective Marston while they were at the home of the appellant and the deceased in the early morning of 15 November 2020. We have viewed and listened to the footage.
3. Subject to acknowledging the jury's significant advantage, we are of the opinion, based on our assessment of the trial record as a whole, that the facts and circumstances established by the evidence proved beyond reasonable doubt that:

(a) the appellant subjectively intended to cause a bodily injury to the deceased (namely a penetrating sharp force injury) by stabbing the deceased in the neck; and

(b) that bodily injury (which, in the event, constituted injury number 1) was of such a nature as objectively to endanger, or objectively be likely to endanger, the life of the deceased.

1. Our reasons for arriving at that opinion are as follows.
2. First, the video and audio recordings made by the body cameras worn by Detective Semetaite, Detective Properjohn and Detective Marston provided cogent evidence as to the appellant's demeanour and behaviour from about 10 minutes after she stabbed the deceased.
3. Secondly, the video and audio recordings made by the body worn cameras show that the appellant was ranting on occasions; very angry on occasions; calm on occasions; and volatile. The appellant's anger was directed primarily towards the deceased. Sometimes her anger was directed towards the police when the police did not act in accordance with her wishes. The appellant stated repeatedly that she did not want the deceased living in 'her' house. It is therefore apparent that the appellant was very angry towards the deceased and that the appellant did not want the deceased living in the house they occupied.
4. Thirdly, during the video and audio recordings made by the body worn cameras the appellant was drinking from a can of beer. It is apparent, having regard to the footage and the evidence as a whole that the appellant was intoxicated. Mr Sandy and Ms Taylor‑Sandy gave evidence that the appellant had been drinking alcohol on 14 November 2020 (ts 115, 134). The appellant said, in effect, in her electronically recorded interview with police (which commenced at 7.08 am on 15 November 2020) that on 14 November 2020 and in the early morning of 15 November 2020 she had drunk about eight to nine cans of Emu Export beer and had used 'speed' (EROI 12 ‑ 14). However, we are satisfied, having regard to the video and audio recordings made by the body cameras, the evidence of Mr Sandy and Ms Taylor‑Sandy and the appellant's statements in her electronically recorded interview with police, that the appellant was not precluded by intoxication from forming the requisite intent for murder. We note, in particular, that when the police were at the house in the early morning of 15 November 2020:

(a) the appellant understood clearly what the police said to her;

(b) the appellant gave information to the police voluntarily, including information about the dogs at the house;

(c) the appellant corrected a police officer who inaccurately stated her middle name to another police officer; and

(d) the appellant sought to be released from her handcuffs to enable her to put on a jacket and she told the police officers that she would not do anything.

It is therefore apparent that the appellant was paying attention to and understanding what was happening around her.

1. Fourthly, it is true that, during the video and audio recordings made by the body worn cameras, the appellant said on a number of occasions that the deceased was not her sister. The appellant referred to the deceased as 'Mary Smith'. However, as she was being removed from the house, when the knife was discovered, the appellant referred to an area where there was a bed and said 'where I sleep when Coral [that is, the deceased] has got a room', but the appellant then said 'oh Mary's got a room, and, therefore, this is where I sleep'. It is apparent from the correction that the appellant knew that the deceased was her sister and knew her name and that the appellant's assertion, on other occasions, that the deceased was not her sister and the deceased's name was 'Mary Smith' was a pretence.
2. Fifthly, during the video and audio recordings made by the body worn cameras, the appellant was able to act in accordance with Detective Properjohn's instructions concerning the removal of her shoes. She was able to remove her shoes while wearing handcuffs and to follow Detective Properjohn's instructions to remove her right shoe first.
3. Sixthly, the appellant's anger towards the deceased, which she expressed during the video and audio recordings made by the body worn cameras and during the electronically recorded interview with police, appears to have arisen from the following:

(a) The appellant's belief that there was some intimate or other inappropriate engagement between her boyfriend and the deceased. Ms Taylor‑Sandy gave evidence that she heard the appellant banging on the deceased's bedroom door and calling for her boyfriend (ts 122). During the video and audio recordings the appellant said that the deceased jumped into bed with her men. She had tried to catch the deceased with her current boyfriend, but she 'couldn't catch them' (EROI 35).

(b) The appellant was deeply resentful towards the deceased because the deceased had a bedroom in the house and the appellant had to sleep on the couch in the lounge room or in the carport. During the video and audio recordings the appellant said that she wanted the deceased out of the house. During the electronically recorded interview with police, when she was asked why she had got the knife, the appellant responded 'I dunno. I wanted her out. I just wanted her out of my house' (EROI 32).

(c) During the electronically recorded interview with police the appellant mentioned other grievances she had with the deceased, including that the deceased did not do the washing and did not give her cigarettes or 'speed' (EROI 16, 23).

1. The fact and the sources of the appellant's anger towards the deceased were a motive for the appellant to cause the bodily injury to the deceased (in particular, the penetrating sharp force injury) with the knife. The appellant's intoxication would have diminished her capacity for self‑control. The existence of the motive, having regard to the evidence as a whole, supports a conclusion that, when she stabbed the deceased, the appellant subjectively intended to cause the relevant bodily injury to the deceased by stabbing her in the neck with the knife.
2. Seventhly, during the electronically recorded interview with police the appellant made statements about her lack of intent in stabbing the deceased. However, the appellant claimed in the interview that her memory of what had occurred at the house was unclear. The appellant said that she did not remember where on the deceased's body she had stabbed the deceased; she was not aiming to stab the deceased in a particular part of her body; she did not remember how many times she had stabbed the deceased; and she did not remember what happened after she stabbed the deceased (EROI 26, 30, 33). In these circumstances, and having regard to the evidence as a whole, the appellant's statements about her lack of intent are unreliable and should be rejected.
3. Eighthly, the penetrating sharp force injury which the appellant inflicted with the knife (and which constituted injury number 1) was delivered to a highly vulnerable part of the deceased's body. Injury number 1 and injury number 2 were inflicted in the same area and were parallel to each other. Dr Vagaja was of the opinion that the superficial wound constituting injury number 2 was also a stab wound. The two injuries are unlikely to have been caused by a single action because they were two distinct wounds without a connection between them. They were stab wounds as distinct from slicing injuries. It is implausible that the appellant could have unintentionally inflicted two stab wounds to the same area of the deceased's neck. The depth of injury number 1 was about 9 cm. Dr Vagaja noted that injury number 1 included a 'linear mark' or an 'incised mark' into the surface of the second thoracic vertebra (ts 187). She said the degree of force required to inflict injury number 1 would not be interpreted as 'a small amount of force' (ts 197).
4. Ninthly, there was no evidence at the trial that injury number 1 may have resulted from a stabbing made 'reflexively in the context of a physical confrontation' between the appellant and the deceased. The appellant did not assert during the video and audio recordings made by the body worn cameras or in the electronically recorded interview with police that the stab wound which constituted injury number 1 may have been inflicted in that manner. Dr Vagaja merely said in evidence that whether the two wounds 'happened as part of the same swing, kind of deflected by struggle' was possible, but she added immediately that she 'wouldn't be able to tell' (ts 198). The assertion that injury number 1 may have resulted from a stabbing made 'reflexively in the context of a physical confrontation' between the appellant and the deceased involves speculation or conjecture.
5. Tenthly, there was no evidence at the trial that injury number 1 may have resulted from 'a fend off motion' in the course of a struggle between the appellant and the deceased. The appellant did not assert during the video and audio recordings made by the body worn cameras or in the electronically recorded interview with police that the stab wound which constituted injury number 1 had been inflicted in that manner. The assertion that injury number 1 may have resulted from 'a fend off motion' in the course of a struggle involves speculation or conjecture.
6. Eleventhly, Ms Taylor‑Sandy gave evidence that she heard the appellant threaten to stab the deceased (ts 133); she heard someone (apparently, the appellant) walk to the kitchen followed by a drawer opening (ts 133); and she heard the deceased shout 'She [obviously, the appellant] has got a knife' (ts 135). The evidence of Ms Taylor‑Sandy, in the context of the evidence as a whole, indicates that after the first and second confrontations between the appellant and the deceased, the appellant went to the kitchen and obtained the knife. This shows that the appellant made a deliberate decision to arm herself with the knife. The blade of the knife was 23.5 cm in length and 5 cm in width at its widest point. It was a significant and dangerous object if used as a weapon. The appellant then returned to the deceased's bedroom with the knife. The action of the appellant in obtaining the knife after the first and second confrontations and then returning with the knife to the deceased's bedroom, where the third confrontation occurred, supports a conclusion having regard to the evidence as a whole that, when she stabbed the deceased, the appellant subjectively intended to cause the relevant bodily injury to the deceased by stabbing her in the neck with the knife.
7. Twelfthly, we do not accept, having regard to the evidence as a whole including, in particular, the fact and the sources of the appellant's anger towards the deceased, the dimensions of the knife, the nature and location of injury number 1 and the evidence of Ms Taylor‑Sandy, that the appellant obtained the knife merely for the purpose of persuading the deceased to leave the house.
8. Thirteenthly, although aspects of the appellant's anger and resentment towards, and other grievances with, the deceased may have resulted from a combination of intoxication and delusional thinking, the appellant was, as we have mentioned, presumed to be of sound mind when she stabbed the deceased. Further, there is no doubt that the appellant's anger, resentment and grievances were real and genuine and that the appellant was driven by her anger, resentment and grievances during her confrontations with the deceased on the night in question. In any event, even if, as counsel for the appellant submitted, the appellant's mind was 'disordered' at the material time, it is apparent having regard to the evidence as a whole that the appellant was capable of deliberate action, including the stabbing of the deceased, and was capable of forming the requisite intent for murder. The nature and extent of the appellant's agitation at the material time did not deprive her of the capacity to form that intent.
9. Fourteenthly, it appears that, after stabbing the deceased, the appellant had the presence of mind to place the knife between the backrest of and a cushion on the couch. (We would not, however, on our assessment of the evidence given by the police officers, conclude that the appellant deliberately secreted the knife with a view to concealing it from the police.)
10. Fifteenthly, counsel for the appellant's submission that the appellant's action in stabbing the deceased was 'an action without much thought' fails to give appropriate weight to the matters to which we have referred at [97] ‑ [98] and [100] ‑ [105] above. We reject the submission.
11. Sixteenthly, it is true that, when she was arrested on suspicion of murder, the appellant asked whether the deceased 'got murdered'. That question does not, in our opinion, indicate that the appellant was unaware that the deceased had been seriously injured. Rather, in our opinion, the appellant's question, when evaluated in the context of the evidence as a whole, merely indicates that the appellant was unaware that the deceased was dead.
12. We are satisfied, on the basis of our review of the trial record and having regard, in particular, to the matters to which we have referred at [92] ‑ [108] above, that the only reasonable inference is that the appellant stabbed the deceased and inflicted injury number 1 with the intent for murder specified in s 279(1)(b) of the Code. We reject counsel for the appellant's submission that the first and second alternative inferences that he posited (see [55] above) could not properly have been excluded at the trial.
13. We note, for completeness, that Dr Vagaja's evidence established beyond reasonable doubt that injury number 1 caused the deceased's death; injury number 1 was 'very, very dangerous' to the deceased's life (ts 188); and the injury would have been 'potentially survivable' only with 'immediate ... medical help' so that the deceased was able 'to be operated on or [receive] emergency treatment within, say, minutes from being stabbed' (ts 188 ‑ 189). In the absence of medical assistance of that kind the injury was not survivable and the deceased would have died (ts 189). Accordingly, there is no doubt that injury number 1 was a bodily injury of such a nature as objectively to endanger, or objectively be likely to endanger, the deceased's life, within s 279(1)(b) of the Code.
14. In our opinion, the jury, acting reasonably, was not precluded by the state of the evidence at trial from convicting the appellant of murder. The jury, acting reasonably, was entitled to be satisfied beyond reasonable doubt (and, subject to acknowledging the jury's significant advantage, on our assessment of the trial record we are also satisfied beyond reasonable doubt), upon the combined force of all the facts and circumstances established by the evidence, that the appellant unlawfully killed the deceased with the requisite intent for murder.
15. The trial record does not require the conclusion that the jury must necessarily have had a doubt about the appellant's guilt on the charge of murder. The verdict of guilty of murder was not unreasonable. The verdict was supported by evidence that the jury was entitled to accept and inferences that the jury was entitled to draw. The nature and quality of the evidence at the trial was sufficient to remove any doubt that the appellant was guilty of murder. After paying full regard to the consideration that the jury was the tribunal of fact entrusted with the responsibility of determining guilt or innocence, and after paying full regard to the consideration that the jury had the benefit of having seen and heard the witnesses, we do not have a reasonable doubt about the appellant's guilt or about the correctness of her conviction on the charge of murder. It would not be dangerous to permit the verdict to stand.
16. The ground of appeal fails.

1. We would grant leave to appeal. However, the ground of appeal has not been made out. 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] M v The Queen [1994] HCA 63; (1994) 181 CLR 487, 492 ‑ 493 (Mason CJ, Deane, Dawson & Toohey JJ).

[2] Zaburoni v The Queen [2016] HCA 12; (2016) 256 CLR 482 [56] (Gageler J).

[3] GAX v The Queen [2017] HCA 25; (2017) 91 ALJR 698 [25] (Bell, Gageler, Nettle & Gordon JJ).

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

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

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

[7] R v Hillier [2007] HCA 13; (2007) 228 CLR 618 [46], [48] (Gummow, Hayne & Crennan JJ).

[8] R v Baden‑Clay [2016] HCA 35; (2016) 258 CLR 308 [47].

[9] Pell v The Queen [2020] HCA 12; (2020) 268 CLR 123 [37] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon & Edelman JJ).

[10] Dansie v The Queen [2022] HCA 25; (2022) 274 CLR 651 [7] (Gageler, Keane, Gordon, Steward & Gleeson JJ).

[11] Fitzgerald v The Queen [2014] HCA 28; (2014) 88 ALJR 779 [5] (Hayne, Crennan, Kiefel, Bell & Gageler JJ).

[12] BCM v The Queen [2013] HCA 48; (2013) 88 ALJR 101 [31] (Hayne, Crennan, Kiefel, Bell & Keane JJ).

[13] Wongawol v The State of Western Australia [2011] WASCA 222; (2011) 42 WAR 91 [23] ‑ [27] (McLure P; Buss JA & Mazza J agreeing).

[14] Schmidt v The State of Western Australia [2013] WASCA 201 [160] ‑ [168], [172] (Buss JA).

[15] Clarke v The State of Western Australia [2018] WASCA 14 [226] ‑ [229] (Buss P; Mazza JA agreeing).

[16] Birdsall v The State of Western Australia [2019] WASCA 79; (2019) 54 WAR 418 [140] (Buss P & Mazza JA).

[17] Turner v The State of Western Australia [2021] WASCA 158 [31] (Buss P, Mitchell JA & Morrison AJA).