TAYLOR -v- THE STATE OF WESTERN AUSTRALIA [2020] WASCA 113 (20 July 2020)

(2) they must not engage in guesswork on that topic as it was irrelevant and would not assist their deliberations.

1. The appellant appeals his convictions on a single ground. He asserts that there was a miscarriage of justice occasioned by evidence being adduced before the jury about the taking of the third statement.
2. For the reasons that follow, the ground of appeal is not made out. In short, that is because we are satisfied that the directions given by the judge were sufficient to avoid any perceptible risk of a miscarriage of justice arising from this aspect of the complainant's evidence.
3. We begin by outlining the parties' cases at trial to provide context for consideration of the issues raised by the ground of appeal.

1. In the late afternoon on 12 June 2017, Mr Noormets asked the complainant to meet with him in Ashfield.[1] Mr Noormets accused the complainant of disrespecting the appellant by not returning the appellant's calls.[2] The complainant knew that the appellant was a fully patched member of the Rebels Motorcycle Club and that Mr Noormets had also been involved with the same club.[3]
2. Mr Noormets bashed the complainant with a torch and ordered him into the boot of the car that the complainant had been driving. Mr Noormets and another person bundled the complainant into the boot of the car. Once in the car, the complainant observed that the person assisting Mr Noormets was the appellant.[4]
3. The car was driven a short distance. The boot was opened and the complainant found himself at a warehouse, filled with what appeared to be rubbish. The appellant, Mr Noormets and Ms Atkinson were present. They assaulted the complainant with weapons, including a torch and a pole. Using cable ties, they tied the complainant's wrists together and his ankles together, and then tied his wrists to his ankles. They then slammed the boot shut.[5]
4. When they opened the boot, Mr Noormets poured petrol on the complainant's legs and Ms Atkinson said 'Light him up'. The appellant stood a short distance away, on the phone and watching what was happening. Mr Noormets set alight the petrol on the complainant's clothing. A short time later, Mr Noormets extinguished the fire with a fire extinguisher. The car boot was shut again and, throughout the course of the incident, it was opened and shut repeatedly.[6]
5. At one time, when the boot was opened, the appellant kicked the complainant in the chest. Another time the boot was opened, Mr Noormets 'waterboarded' the complainant by putting a towel over his face, pouring water over him and thereby making the complainant feel like he was drowning.[7]
6. At some point, the complainant became unconscious. When he regained consciousness, he could no longer hear anyone outside. The complainant managed to break out of the boot and escape the warehouse. Once outside, he realised that he had been in the warehouse of the appellant's skip bin business. He sought assistance from a passer‑by.[8]
7. The complainant gave evidence substantially to the effect outlined above.[9]

1. The appellant had a skip bin business. He was in a relationship with Ms Atkinson, who also worked in the business. There was angst between the appellant and the complainant because the appellant and Ms Atkinson had helped the complainant's partner leave her relationship with the complainant.[10]
2. On the day of the offences, the appellant was at his business premises. Mr Noormets arrived at the premises at about 8.00 pm. When the appellant saw the complainant at the premises, he asked Mr Noormets 'Why'd you bring this dickhead to the factory?' The complainant and the appellant began verbally abusing each other, before engaging in a physical fight, during which both parties suffered hits to the face. At one point, the appellant was on the ground while the complainant was on top of him, trying to punch him. Ms Atkinson intervened and the fight ultimately ended.[11]
3. Ms Atkinson returned to the office while the complainant, the appellant and Mr Noormets spoke in the factory. The complainant and the appellant called a truce.[12]
4. The appellant gave evidence substantially to this effect.[13] He also said that, after the complainant and the appellant had resolved their differences, the appellant, the complainant and Mr Noormets used drugs[14] and drank alcohol.[15] The appellant then left and resumed working outside the warehouse, at the back of his business premises.[16] He went to sleep in the bedroom at his business premises in the early hours of the morning.[17]
5. The appellant said he was not present at the initial meeting in Ashfield between Mr Noormets and the complainant.[18] The appellant said he did not assault the complainant (other than during their fight), that he was not involved in putting cable ties on the complainant, that he was not involved in putting petrol on the complainant, and that he was not involved in putting a towel over the complainant's face and then pouring water on his face.[19]

1. Mr Noormets' case was broadly consistent with the appellant's case. His account of the fight between the appellant and the complainant[20] was broadly the same as the appellant's account. He also gave evidence as to the background to the meeting on 12 June 2017[21] and as to what occurred after the initial fight between the appellant and the complainant.[22]
2. It is not necessary to detail Ms Atkinson's case.

1. The third statement is undated but, according to the complainant, was made on 27 August 2018. Contrary to his evidence at trial, in the third statement, the complainant did not identify Mr Noormets as one of the offenders. He said, in the third statement, that the appellant was the only person that he recognised during the attack upon him, although he also referred to Ms Atkinson, the appellant's partner, as being present.
2. The fourth statement explained in some detail the circumstances in which he made the third statement. In essence, he said that the third statement was false and that a person named Simon Curry forced him to make the third statement. Mr Curry arranged for him to meet with a lawyer. He said that what was written in the third statement was the lawyer's words, not his, and that he signed it because he knew that Mr Curry was waiting outside and he felt he had no other choice. In his fourth statement, the complainant also said that what the lawyer wrote was not true and that the statements he had previously given to the police were the truth.

Discussion of the statements before the commencement of evidence

1. Counsel for the appellant at trial raised the third statement after counsel gave their opening addresses, but before the commencement of evidence. He said that he would not cross‑examine the complainant on the statement and that the State had agreed not to adduce evidence from the complainant on the statement.[23] However, he acknowledged that the appellant's position did not bind counsel for the other parties.[24] He indicated that, 'depending [on] where things fall and what evidence flows', he may make an application for a separate trial for the appellant.[25]
2. Counsel for Mr Noormets indicated that he would cross‑examine the complainant on the inconsistencies between the third statement and the complainant's evidence at trial.[26] Counsel for Ms Atkinson indicated that he would not cross‑examine the complainant on the statements.[27]
3. The prosecutor said the following:[28]

Look, I think it's inevitable that if he's asked about his statement made in the office of [the lawyer], he'll say it was made under duress at the behest of [the appellant]. And that would be the answer we would expect him to give. And, furthermore, there was more to it after that statement was given, there was a further attempt from [the lawyer] to extract a statement, and this is all going to be opened up. It's a matter for [Mr Noormets' counsel], but it's unavoidable I would have thought.

1. The State further observed that, in addition to the appellant, Mr Noormets might also be implicated in the taking of the third statement because it was supplied to Mr Noormets' lawyer for the purposes of a bail application.[29]
2. Later, when summarising this part of the trial, the judge stated:[30]

I took the view that [Mr Noormets' counsel] should not be prevented from cross‑examining in that manner if he wished to, even though he would do so in the knowledge that the witness would likely volunteer that the statement had been made under pressure and against his will, and that if the witness did not volunteer it ‑ or even if he did ‑ that the State would seek to re‑examine.

I also took the view that the State should not be prevented from leading evidence as to the circumstances in which the statement came to be made, in order to demonstrate that the inconsistencies and in the third statement did not demonstrate a genuine change of account, or loss of memory, on the part of the witness, but rather, were made under pressure and against his will.

Finally, I took the view that I could not make any ruling on any foreshadowed application until the evidence was in.

1. It is necessary to refer only to some parts of cross‑examination by Mr Noormets' counsel of the complainant and of the re‑examination.

1. Counsel for Mr Noormets questioned the complainant about the subject of the third statement:[31]

[MR NOORMETS' COUNSEL]: ... Now, I want you to move on to an area now, Mr [complainant], I'll be very precise with my questions and if you can be very precise with your answers. Did a man called Simon make an appointment for you to meet with a solicitor called [the lawyer] on Saturday, 11 August 2018?---I cannot remember the date ‑ what day it was or what date it was, but yes, Simon Curry(?) made me go see a lawyer.

Now, have you got ‑ so you can't remember what date it was but you did go and see ‑ well, you had an appointment to see [the lawyer], is that right?---No, I got made to go see [the lawyer].

Sorry?---I got made to go see a lawyer.

Well, an appointment was made for you, is that right?---I was picked up and forced to go see a lawyer, yeah.

[THE JUDGE]: Could you just hone in on the question though? You're being asked, 'Was that appointment made for you'?---I don't know, I ‑ ‑ ‑

Well, did you make the appointment yourself?---No, I did not make an appointment.

[MR NOORMETS' COUNSEL]: Did you say to the police or ‑ did you make a statement to the police about this, didn't you?---When I got forced to go see this lawyer?

You made a statement to the police about seeing [the lawyer] in an appointment, didn't you?---Of course.

Now, that statement should be floating around where you are, Mr [complainant], one of the officials should have it.

It appears, your Honour, at page 255 of the prosecution brief, and it's a statement dated 6 September 2018.

...

[MR NOORMETS' COUNSEL]: You've got it?---Yes.

Can you just confirm that that's your signature at the bottom?---Yeah.

And the date would be 6 December 2018? Correct?---Yeah.

Have a look at paragraph 51 of that statement, will you?---Yeah.

Does that read:

Simon told me an appointment had been arranged for me to meet with [the lawyer] on Saturday, 11 August 2019.

1. The prosecutor objected to this question. In the absence of the jury, it was resolved that counsel for Mr Noormets was simply trying to hone in on the relevant dates and that he was relying on the fourth statement to do this. The prosecutor was satisfied with this.[32]
2. Counsel for Mr Noormets continued cross‑examining the complainant on the statements:[33]

[MR NOORMETS' COUNSEL]: Now, Mr [complainant], can you hear me?---Yes.

Good. Now, before the break, I was referring you to your statement of 6 September 2018. Right?---Yes.

Now, just read for yourself paragraph 51 on page 8, will you.

[THE JUDGE]: Just quietly to yourself, not out loud.

THE WITNESS: Yes.

[MR NOORMETS' COUNSEL]: Right. So it's right you told the police that you had an appointment to see [the lawyer], Saturday, 11 August 2018? Correct?

[THE JUDGE]: It's gone right back - - -

[MR NOORMETS' COUNSEL]: Precisely what you said before lunch.

[THE JUDGE]: Yes. We're just right back to the same point, [Mr Noormets' counsel]. Just put to the witness, does that refresh your memory that the appointment was 11 August.

[MR NOORMETS' COUNSEL]: Is it right that that meeting was scheduled for Saturday, November 2018? [sic]---Yep.

Yes?---Yes.

Right. Now, have a look down to paragraphs 55 and 56. Just read that quietly to yourself?---Yeah.

Is it right that that was an appointment to see [the lawyer] on Monday, 27 August?---Yes.

Right, and that's when you met [the lawyer], on Monday, 27 August?

‑‑‑Yeah.

Yes? Right. Now, at the end of that statement is the handwritten page ‑ at the end of your statement, a handwritten page and a half, or not?---Yeah.

All right. And you've signed that, haven't you?---Yeah.

And the process was that [the lawyer] wrote that out for you, and you signed it? Is that what happened?---Yeah.

Now, is it right that in that statement you say you couldn't identify who hit you at the IGA Ashfield site?---Yes.

Is it correct in that statement, you say you can't identify Luke Noormets at the factory unit area?---Yeah.

Okay. You can put that to one side now.

1. Counsel for Mr Noormets then questioned the complainant about messages that appear to have been sent between the complainant and Mr Noormets' partner:[34]

[MR NOORMETS' COUNSEL]: ... Did you message her on Facebook?---When?

Any time?---Have I messaged her?

Sorry?---Have I ever messaged her on Facebook?

Yes?---Yes, of course there would be times I messaged her.

All right. And you message her on 9 August?---What year?

2018, at about 1.50 pm, saying:

Seeing a lawyer on Saturday for you and your son xx.

?---I don't remember sending that.

...

You were known as [complainant's first name] on your Facebook message, were you?---Yes.

Right. Did you send that message dated 9 August to [her]?---Not from recollection.

And look at the second message?---Yeah.

Did you send that message to [her]?

[THE JUDGE]: For the transcript, you're talking about one that says 28 August at 11.40 pm.

[MR NOORMETS' COUNSEL]: Yes.

[THE JUDGE]: Yes.

THE WITNESS: Not from memory.

1. The prosecutor asked the complainant the following during re‑examination:[35]

[THE PROSECUTOR]: ... [Mr Noormets' counsel] also raised with you some events that happened in August 2018 when a man called Simon Curry contacted you?---Yes.

Do you know what I'm talking about?---Yes.

And he ‑ had you confirmed that on a particular date you went to see somebody called [the lawyer]?---Yes.

A lawyer in Perth?---Yeah.

[The lawyer] wrote some things down?---Yeah.

And got you to sign it?---Yes.

And what [the lawyer] got you to sign was a somewhat ‑ slightly different version of the events to do with this incident of 13 June 2017. Is that right?---Yeah.

First of all, whose idea was it for you to go and see [the lawyer]?

---Simon Curry's.

Okay. Did you know Mr Curry?---No.

Did Mr Curry tell you who he was?---Yeah. In a nutshell, I was in fear for my family's and my safety.

Okay. Did you ‑ did you think Mr Curry made this arrangement for you on his own behalf or for someone else?---On someone else's behalf.

Who? Who did you think he was making it on behalf of?---The people that are in gaol.

Okay. And who are we talking about, just to be clear?---Luke and Steve.

Luke and Steve? Okay. And had you ever met [the lawyer] before?

---No.

Okay. What did you think would happen if you declined Mr Curry's appointment to see [the lawyer]?---I would be in a lot of danger.

Okay. So what did you do when Simon Curry made this appointment for you to see [the lawyer]?---I just did what I got told to do.

Which was what?---Go and see him.

Okay. And where was this appointment at ‑ held?---In the city.

In the city? Had you ever been to that office before?---No.

And what happened at that meeting with [the lawyer]?---A set of events just got written down and words got changed, and I got ‑ had to sign the statement, and then go back to Mr Curry's car.

Okay. The statement you signed, were they your words?---No.

Whose words were they?---[The lawyer's].

And after the end of that meeting, you got taken ‑ you went back to Simon's car?---Yeah.

And what did Simon do with you?---He dropped me off in Morley.

Dropped you off in Morley? Okay. And after you gave that statement, after you ‑ well, signed [the lawyer's] words ‑ what did you do about it?‑‑‑I contacted gang crime and told them what I'd been made to do.

Okay. And you made a statement about it?---Yes. (emphasis added)

1. Luke and Steve are the first names of Mr Noormets and the appellant, respectively.

1. After re‑examination, the following applications were made:

(1) The appellant's counsel applied to discharge the jury and for the appellant to be granted a separate trial.[36]

(2) Mr Noormets' counsel applied for the jury to be discharged, in light of the evidence that emerged in re‑examination.[37]

(3) Ms Atkinson's counsel applied for a separate trial for Ms Atkinson, also in light of the complainant's evidence in re‑examination. He noted that, if her Honour were to grant this application, then, the jury might be discharged as a whole or Ms Atkinson might be carved out from this trial.[38]

1. The State opposed all applications.[39] The prosecutor added that, even if the judge granted Ms Atkinson's application:

[T]he trial should proceed against [the appellant] and Noormets on the basis that what [t]he jury heard about the third statement was always admissible against [the appellant] and Noormets. And indeed, [the appellant's] counsel was forewarned that it would be adduced. Sorry. Noormets' counsel.[40]

1. The appellant's counsel applied, pursuant to s 116(2) of the Criminal Procedure Act 2004 (WA), for the judge to discharge the jury on the basis that it was in the interests of justice to do so.[41] He further submitted that it would follow that the appellant be granted a separate trial, pursuant to s 133(4) of the Criminal Procedure Act.[42] He made two main submissions in support of these applications.
2. First, he submitted that the third statement and the circumstances in which it was made were prejudicial to the appellant.[43] The prejudice lay in the fact that the appellant was perceived to have been a person behind the complainant being forced to make a false statement.[44] The appellant's counsel observed that the complainant's re‑examination was prejudicial also because it revealed that the appellant was in jail.[45] However, the appellant's counsel said that he did not 'go down that path' and he conceded that, often, prejudice caused by such a revelation is cured by a direction.[46]
3. Secondly, the appellant ‑ in giving evidence in this trial about the circumstances surrounding the statements ‑ would effectively be forced to disclose his defence to his charge for attempting to pervert the course of justice.[47] In re‑examination, the complainant's evidence was that he perceived the appellant to be one of the people behind the third statement. To deal with this issue, the appellant would need to be asked, in this trial, questions such as 'were you involved in that' and 'did you cause Mr Curry to go and see [the complainant], to go and see [the lawyer]'. In turn, the appellant would be cross‑examined on the matter. Thus, the appellant would reveal his defence to his charge of attempting to pervert the course of justice and would be cross‑examined on the evidence that he will give in future at the trial for that charge.[48] This would undermine the appellant's right to silence in relation to that charge.[49]
4. The appellant's counsel submitted that these issues would not arise if the appellant were tried separately because the appellant's counsel would not cross‑examine the complainant about the third statement.[50]
5. In reply, the appellant's counsel reiterated that he should not have to ask the appellant about the statements at all. Accordingly, the appellant should be granted a separate trial.[51] However, if this trial proceeded, he said that it would be 'derelict' to his duty to the appellant not to ask him about the statements.[52]

1. The judge outlined the background in terms consistent with what we have outlined above. The judge then made some general observations, including the following:

(1) As regards the taking of the third statement, the complainant could give admissible evidence only about Mr Curry and the lawyer. He gave no direct admissible evidence against any accused.[53]

(2) The part of the re‑examination italicised in [35] above was inadmissible, though none of the defence counsel objected to it. It was opinion evidence, for which no factual basis was given. It may have been admissible had it been 'led for the purpose of explaining why it was the witness then acted as he did, but no further evidence was given to develop [54]at point'.54

(3) This part of the re‑examination was also clearly prejudicial. First, it suggested that the appellant and Mr Noormets were in jail. Secondly, and more significantly, it suggested that they were behind the taking of the third statement.[55] Given this, the questions above should not have been asked.[56]

(4) The balance of the re‑examination on the third statement was admissible. The State was justified in putting that evidence before the jury to explain that the complainant felt he had no choice but to sign the third statement due to implied threats from Mr Curry and that the third statement did not contain the complainant's words, but the words of the lawyer.[57] The inconsistencies in the third statement might have been seen as less significant in this trial, given identity was not in issue (and given the inconsistencies in that statement concerned the identity of one of the offenders). However, the complainant was cross‑examined in ways that put his credibility and character in issue. Thus, the inconsistencies in the third statement were significant because they were material inconsistencies and, if the complainant made that statement willingly, it suggests that he is an unreliable witness or that he was willing to sign a false statement.[58]

1. The judge then determined the appellant's application for a separate trial by reasoning summarised as follows.
2. First, the judge found that there was some likelihood of the appellant being prejudiced on account of his joint trial, such that the threshold for her Honour's discretion to be exercised was enlivened.[59]
3. Prejudice arose from the appellant being tried jointly with, in particular, Mr Noormets.[60] Had he not been tried with Mr Noormets, the complainant would not have been cross‑examined, and therefore would not have been re‑examined, about the third statement.[61] But, having been tried with Mr Noormets, the complainant gave evidence that he perceived that the appellant and Mr Noormets were behind his being forced to make the third statement. This was prejudicial because, if the jury believed the complainant's evidence, that evidence suggested that the appellant was involved in pressuring a witness into changing their account.[62] That there was already other evidence before the jury that was prejudicial to the appellant ‑ namely that he was a senior member of the Rebels Motorcycle Club ‑ did not change this.[63]
4. There would also have been prejudice to the appellant had he been required, in this trial, to show his hand about his pending trial for attempting to pervert the course of justice. However, the appellant would not be required to do this because, for reasons the judge later gave, no party was permitted to give evidence about any accused's involvement in the third statement.[64]
5. Secondly, her Honour concluded that a direction to the jury could guard against the likelihood of prejudice. The judge set out in detail the nature of the direction to be given to the jury.[65] We will set out the judge's direction below.
6. Her Honour considered that an average jury would be reasonably capable of disregarding the complainant's evidence about who he thought was behind the creation of the third statement. Further, it was reasonable to expect the jury to be able to do this with respect to any of the accused, if strongly directed to do so. The judge concluded that this was not a case in which such a direction required the jury to engage in a complex intellectual exercise.[66]
7. Her Honour gave three reasons for prohibiting the appellant from giving evidence about whether he had any involvement in the taking of the third statement. First, the judge did not know, and would not ask the appellant's counsel about, the nature of the appellant's position on his involvement in the creation of the third statement.[67]
8. Secondly, if the appellant were to deal with the third statement, the other accused may feel obligated to also do so, in circumstances where they are not on trial before this jury for, and where there is no admissible evidence against them about, the creation of that statement.[68]
9. Finally, if counsel were to examine any accused about the third statement, that would contradict the judge's direction to the jury not to conclude whether any accused was involved in making that statement.[69] In other words, there was no admissible evidence, and no allegation, before this jury that any accused was involved in the creation of the third statement, so any accused's evidence about their involvement in the third statement would be irrelevant. This being so, the appellant would not need to reveal his defence to his charge for attempting to pervert the course of justice ahead of his trial for that charge.[70]
10. The judge also found that the reference to the appellant being in jail could be cured by a direction.[71]
11. The judge rejected the appellant's application to discharge the jury for the same reasons her Honour rejected Mr Noormets' application to discharge the jury. The judge also reasoned that there was no need to discharge the jury, given her Honour had rejected the appellant's application for a separate trial.[72]
12. The judge noted that the complainant had already given his evidence, which spanned two days, on what was a traumatic experience (at least on his version of the events).[73] Further, the accused had already been in custody for two years and discharging the jury would result in further delays.[74] These factors weighed against discharging the jury. The judge reiterated that the complainant's evidence ‑ that he thought Mr Curry was acting on the appellant's behalf ‑ was prejudicial,[75] but that the prejudice could be guarded against by a direction as outlined on the appellant's separate trial application.[76]

1. The judge directed the jury immediately after giving her decision on the applications. After directing the jury as to an unrelated matter, her Honour told the jury the following:[77]

Now, moving onto a different topic, you recall that [the complainant] was cross‑examined about a statement that he'd made to a lawyer ... here in Perth. He'd by then already made two statements to the police, we've heard. And this statement that he made to the lawyer was his third statement. He was cross‑examined by [counsel for Mr Noormets] who represents Mr Noormets about things he said in that statement to the effect that he could not identify who hit him at the Ashfield IGA ‑ IGA site and he could not identify Mr Noormets at the factory unit. That's the Katanning Street premises.

[Counsel for Mr Noormets] was entitled to cross‑examine him on any differences between that third statement and the evidence he gave in this trial to test the honesty and reliability of his account and to suggest that the account has changed. So statements that are made out of court, like statements to the police or this third statement, they're not actually evidence. What is evidence is what the witness says in the courtroom. But counsel are entitled to test that evidence by cross‑examining on any inconsistencies that they may find between evidence in the trial and in a statement. So [counsel for Mr Noormets] was cross‑examining him on differences.

In re‑examination [the complainant] testified that he was made to make that statement by a Simon Curry. And the State was entitled to ask him how he came to make that statement, given that it does contain statements that are inconsistent with his evidence. However, he was also asked by the prosecution whether he thought Simon Curry was acting on his own behalf or for someone else. That question shouldn't have been asked.

Evidence given by [the complainant] that he thought that Simon Curry was acting on behalf of [the appellant] and Noormets was inadmissible opinion evidence. Evidence of what a witness might think has occurred and what conclusions he might have drawn for himself is evidence which is not normally led in a criminal trial because it is guesswork. It's personal opinion only unless that witness is an expert who is being asked to give their expert opinion on matters within their field.

There was in fact no evidence given by [the complainant] that he had any dealings with either [the appellant] or Mr Noormets in relation to the making of this third statement. And you have no way of knowing whether this Simon Curry, whoever he is, was acting off his own bat out of some sense of friendship or loyalty or for some entirely different reason that we know nothing about, or whether he was acting on behalf of someone who is not any of these accused but had some interest in this matter or some other motivation that we know nothing about.

In addition, logically, a person might seek to prevail upon a witness to sign a statement to change his evidence out of a desire to thwart an investigation because the allegations are true and the people he accuses are guilty. But equally, a person might seek to prevail upon a witness to make him change his evidence because the witness is lying and the people he accuses are innocent. And that is why the actions of Mr Curry, whoever he is, whatever motivated him, truly do not assist you to judge what occurred on the night of 12 June 2017.

You must disregard [the complainant's] personal opinion because it was inadmissible. And engaging in your own guesswork about what may have motivated Simon Curry to so act will not assist you to determine what happened on the night of 12 June 2017.

The evidence which was led by the State in re‑examination as to how [the complainant] came to have an appointment with the lawyer ... set up by Simon Curry, if you accept [the complainant's] evidence was led for a narrow purpose only.

It was to enable the witness to explain how it was he came to sign a statement, stating that he could not identify who he [sic] hit him at the Ashfield IGA site and could not identify Noormets at the factory unit when he has testified in this trial that he met with Noormets in Ashfield and that Noormets was at the business premises where the incident occurred.

You'll also be aware, to put this into its proper context, that the way in which the defence case for Noormets has been conducted has involved cross‑examination to the effect that Noormets did meet him in Ashfield and that [the complainant] was not bashed and not bundled into the boot at all but got in voluntarily and also that Noormets was at the business premises of [the appellant].

You may have noticed that counsel for [the appellant] and counsel for Ms Atkinson didn't cross‑examine about this third statement and inconsistencies at all. [The complainant's] explanation is the words in the third statement were not his. They were the words of the lawyer and that he signed that statement because he'd been pressured to do so by Simon Curry.

In those circumstances it's the State's case that the third statement doesn't reflect negatively upon his credibility because it's not true that he couldn't identify Noormets. That's why the State led the evidence and that is all the State asks you to draw from that evidence. From the defence for Noormets['] point of view [the complainant] has signed another version of events. He can't be trusted to tell the truth.

That's the only purpose of that evidence. That is its only relevance. And there being no admissible evidence whatsoever that any of the accused were involved in the making of the third statement, you must disregard [the complainant's] evidence of his own personal theory about whether Simon Curry was acting for someone else and if so, whom. And you mustn't use that personal opinion evidence to draw a conclusion against any of the accused that they had any involvement in the making of that statement because that would be entirely unfair against them.

The State is not asking you to conclude that any accused had any involvement in the making of that third statement. This trial is not about the making of that statement. None of the accused are here to defend such an allegation and I direct you that they need not make any attempt to defend such an allegation because no such allegation is made by that evidence. And so that issue about which there is no admissible evidence before you is not relevant to your determination of the charges in this trial.

So that's what I needed to direct you on and we're now ready to continue with the trial. Thank you. (emphasis added)

1. The judge returned to these topics in her Honour's summing up. Her Honour mentioned the third statement in the context of inconsistencies between the complainant's evidence and his previous statements:[78]

[The complainant] accepted that there's a third statement which he made to a lawyer ... here in Perth, in which he said he couldn't identify who hit him at the Ashfield IGA site and he couldn't identify Mr Noormets at the factory unit.

In relation to that statement you'll recall that he said he was made to sign it.

1. Also in the context of inconsistencies in the complainant's evidence, the judge observed that the jury may consider whether the third statement undermines the appellant's credibility. Her Honour then reminded the jury of the direction she had previously given:[79]

In this case of the third statement, you'll want to consider whether that statement reflects negatively upon [the complainant's] credibility or not. He was cross‑examined about that by [counsel for Mr Noormets]. In the context of a trial in which Mr Noormets accepts that he was both at Ashfield, although he denies hitting [the complainant] there, and accepts he was at the warehouse, consider whether that third statement represented [the complainant's] memory ‑ sorry, represented that [the complainant's] memory was unreliable, and that he genuinely couldn't identify Mr Noormets as having been at Ashfield or at the warehouse, or whether there's another explanation for the making of that third statement which does not reflect upon his memory of events.

He acknowledges he signed the statement. He, in effect, says that it was false, that he was made to. Given that I've just mentioned the third statement by way of inconsistencies between evidence [the complainant] gave in court and statements that he'd signed, and given that the prosecutor made submissions to you about this ‑ [Mr Noormets' counsel] didn't make submissions to you, I will just remind you in brief of something I said rather earlier in this trial.

The person who [the complainant] said made him sign that statement was a Simon Curry, about whom we know nothing about. There is no evidence that [the complainant] had any dealings with any accused in this case in relation to the third statement. There's no allegation made against any accused in this case in involvement in that third statement.

[Mr Noormets' counsel] was entitled to cross‑examine the witness on the difference between that third statement and the evidence he was giving in the trial to test his account and to suggest that his account had changed. And then the State led evidence from [the complainant] explaining how this Simon Curry had made an appointment with him for this lawyer, and how [the complainant] says the lawyer really drafted the words of the statement and [the complainant] felt he had to sign it.

It's a matter for you whether you consider the inconsistency in that statement to the effect that [the complainant] could not identify who hit him at the Ashfield IGA site and could not identify Mr Noormets at the factory unit reflects negatively upon his credibility or not. But I will remind you that what you must not do is draw any conclusion against any accused in this case to the effect that they had anything to do with that statement, because there is no evidence that they did. And no allegation is made against any accused to that effect, and the issue does not truly cast any light on what this trial is all about.

1. The judge directed the jury not to draw any conclusions based on the revelation that the appellant was in prison:[80]

You've heard that [the appellant] and Mr Noormets have been in custody. That has absolutely no relevance to your assessment of the issues in this trial. There can be various reasons why a person is in custody, it simply has no bearing on your assessment of their credibility or the credibility of [the complainant] or your assessment of any issue in the case.

And you can't draw anything from it either against Mr Noormets or [the appellant] and nor should you have regard to it in some way in their favour. So simply put it to one side because it has no relevance or assistance to you.

1. The appellant appeals his convictions on the following ground:[81]

(1) There was a miscarriage of justice occasioned by evidence being adduced before the jury in relation to a separate event involving the appellant;

(1.1) Prejudicial material about that separate event was adduced by a co‑accused that could not be cured by direction.

(1.2) Inadmissible evidence connected to that separate event was adduced by the State that could not be cured by direction.

1. The appellant submits that her Honour's ruling not to discharge the jury and not to order the appellant a separate trial failed to guard against a miscarriage of justice because the prejudicial and/or inadmissible evidence that was before the jury could not be cured by a direction.[82] The prejudicial and/or inadmissible evidence to which he refers is primarily the italicised part of the complainant's re‑examination set out at [35] above, while also referring to Mr Noormets' counsel's cross‑examination of the appellant about the thir[83]statement.83
2. Citing House v The King,[84] in written submissions the appellant submits that the adducing of the evidence in Mr Noormets' counsel's cross‑examination was 'plainly unjust and unreasonable' in the trial against the appellant.[85] Whether the appellant maintains that the cross‑examination, as distinct from the re‑examination, gave rise to a miscarriage of justice is not entirely clear.
3. Further, because the appellant was not permitted to adduce evidence about his involvement in the third statement, he submits that the complainant's evidence left the jury with an unanswered allegation that the appellant had engaged in, at the least, discreditable (and, at the worst, illegal) conduct that was not relevant to the trial at hand.[86]
4. The appellant submits that the degree of prejudice occasioned by this evidence was greater than that occasioned in Rankins v The State of Western Australia.[87]
5. Further, he submits that it is difficult to see how the jury would not have taken the evidence into account during its deliberations, despite the judge's direction not to do so.[88] He submits that the impugned evidence was 'too damaging',[89] 'prejudicial' and 'inflammatory'[90] for a jury not to be adversely influenced by it: 'a jury simply couldn't put something that damaging out of their mind'.[91] This is because the evidence displayed post‑offence conduct on the appellant's part that went to a consciousness of guilt concerning the offences the subject of the trial, when those offences themselves involved alleged violence.[92]
6. In the course of oral argument, a second strand of the appellant's submissions in support of ground 1 emerged, to the following effect. The complainant gave evidence that he was made to sign the third statement. The jury would naturally have wondered who would be behind making the complainant sign a statement. There was a real risk that the jury would think, in effect, who else but those who were accused would have had a reason to do so. While no criticism was made of the judge's directions, the appellant submits that the directions could not remove the perceptible risk that the jury would reason in this fashion.[93]

1. To the extent that the appellant complains as to the cross‑examination, the complaint is without substance. The questions were a permissible means of seeking to impugn the complainant's credit. The judge explained the use to which the evidence might be put, and appropriately confined the jury in that respect. See [57] ‑ [59] above.
2. The gravamen of the appeal relates to the re‑examination.
3. The three questions italicised in the passage set out in [35] above in the complainant's re‑examination should not have been asked. They sought and obtained evidence that was inadmissible.
4. That having occurred, the position was as explained by this court in Kitto v The State of Western Australia:[94]

The inadvertent reception of inadmissible evidence of a prior conviction, which is plainly prejudicial to the accused, does not, in and of itself, necessarily require the trial judge to discharge the jury on the basis that a fair trial is no longer possible. In R v Glennon, Mason CJ and Toohey J said:

Reception of inadmissible evidence of a prior conviction has been said to offend against one of the most deeply rooted and jealously guarded principles of our criminal law. And the wrongful reception or transmission of such evidence by or to the jury is calculated to set the prospect of a fair trial at risk. It is then for the trial judge to decide whether it is necessary to discharge the jury in the interests of securing a fair trial and, if the trial proceeds and results in a conviction, for a court of criminal appeal to decide whether the accused has been deprived of a fair trial. (emphasis added) (footnotes omitted)

Thus, where there is an inadvertent reception of inadmissible, prejudicial evidence, the trial judge has a discretion as to whether to discharge the jury or allow the trial to continue, with or without directions. The techniques for dealing with such prejudicial evidence, apart from discharging the jury, include (1) telling the jury to ignore the evidence, and (2) telling the jury to treat the case as if the evidence had not been given. Directions in this context are an aspect of the general law's requirement that a warning should be given whenever a warning is necessary 'to avoid a perceptible risk of miscarriage of justice arising from the circumstances of the case'. The 'possibility of a miscarriage of justice' is both the occasion for giving a warning to the jury and the determinant of its content.

The majority in Crofts v The Queen observed:

No rigid rule can be adopted to govern decisions on an application to discharge a jury for an inadvertent and potentially prejudicial event that occurs during a trial. The possibilities of slips occurring are inescapable. Much depends upon the seriousness of the occurrence in the context of the contested issues; the stage at which the mishap occurs; the deliberateness of the conduct; and the likely effectiveness of a judicial direction designed to overcome its apprehended impact. As the court below acknowledged, much leeway must be allowed to the trial judge to evaluate these and other considerations relevant to the fairness of the trial, bearing in mind that the judge will usually have a better appreciation of the significance of the event complained of, seen in context, than can be discerned from reading transcript. (emphasis added)

The question for the judge on the appellant's application to 'abort' the trial was, having regard to the statutory language of s 116(2) of the Criminal Procedure Act, whether it was 'in the interests of justice' to do so. This required his Honour to consider whether there was a real and substantial (as distinct from a remote) risk that the appellant would not receive a fair trial according to law by reason of the jury having heard by inadvertence the evidence his Honour had earlier excluded. In doing so, it was necessary for his Honour to bear in mind the techniques for dealing with such circumstances referred to above, including any remedial directions that may be given to the jury. As already described, his Honour decided not to discharge the jury and thereby 'abort' the trial. (footnotes omitted)

1. As explained in Kitto, on appeal the critical question is not whether error can be discerned in the judge's refusal to discharge the jury, or additionally in this case, in refusing to order a separate trial. (In so observing, we should not be taken to suggest that any error is apparent in the judge's careful and cogent reasons.) Rather, the question is whether, in light of the directions given, there was a miscarriage of justice. That turns upon whether, in this court's assessment, there was a real and perceptible, as distinct from remote or fanciful, risk that the impugned evidence might lead the jury to reason impermissibly or otherwise result in an unfair trial.
2. For the reasons that follow, we are not persuaded that, in this case, there was any real or perceptible risk of that kind.
3. Both strands of the appellant's complaint contend, in effect, that there was a real risk that the jury might think that the appellant was involved in causing the complainant to make the third statement, and then use that adversely to the appellant in arriving at their verdict. The first strand contends that such a risk arises because the complainant gave evidence of his opinion to that effect. The second contends that the risk arose as a natural inference that the jury might draw from the facts that (i) the complainant said he had been forced to make a statement; and (ii) the accused people were those with the obvious interest in causing that to occur.
4. In our opinion, the judge's directions were sufficient to ensure that there was no real risk of the jury reasoning in this fashion, on either of the bases asserted by the appellant.
5. The judge's direction given the morning following the complainant's evidence instructed the jury, in clear and firm terms, that:

(1) The complainant's evidence as to who he thought Simon Curry was acting on behalf of was inadmissible.[95] There was no evidence given by the complainant that he had any dealings with the appellant or Mr Noormets in relation to the making of the third statement.[96] The jury must disregard the complainant's inadmissible opinion.[97] The jury must not use the inadmissible opinion evidence to draw any conclusion against any accused that they had any involvement in the making of the statement ‑ to do so would be unfair.[98]

(2) The jury must not engage in their own guesswork as to what may have motivated Mr Curry.[99] To do so will not assist the jury's evaluation of what occurred on the night of 12 June 2017 (when the events the subject of the charges were said to have occurred).[100] The State was not asking the jury to draw any conclusion that any accused had any involvement in the making of the third statement. That issue, about which there is no admissible evidence, is not relevant to the trial.[101]

1. In the judge's summing up, her Honour reminded the jury of what she had already said and specifically reiterated that:

(1) There was no evidence that the complainant had any dealings with any accused in relation to the third statement and there was no allegation of involvement by any of them in the taking of the third statement.[102]

(2) The jury must not draw any conclusion against an accused that they had anything to do with the statement as there was no evidence that they did.[103]

(3) Further, there is no allegation about it and the issue does not cast any light on the subject matter of the trial.[104]

1. With rare exceptions, a criminal trial on indictment proceeds on the fundamental assumption that jurors are true to their oath or affirmation and understand and obey the trial judge's directions.[105] The possibility that a juror might acquire irrelevant and prejudicial information is inherent in a criminal trial.[106] As the High Court observed in Dupas v The Queen, what is vital to the criminal justice system is 'the capacity of jurors, when properly directed by trial judges, to decide cases in accordance with the law, that is, by reference only to admissible evidence led in court and relevant submissions, uninfluenced by extraneous considerations'.[107] That is consistent with the 'experience and wisdom of the law ... that, almost universally, jurors approach their tasks conscientiously'.[108]
2. We are not persuaded that there is any sound basis in this case to depart from this fundamental tenet.
3. In our view, the judge's firm direction, in unmistakeably clear terms, removed any real risk that the jury might act on the complainant's inadmissible opinion evidence as to whose behalf Mr Curry was acting upon. We do not accept the appellant's submission that the impugned passage, in the context of a trial that lasted almost two weeks, was of such overwhelming significance that there was a real risk that the jury would be unable or unwilling to follow the judge's direction. We agree with the trial judge's conclusions[109] that (i) a jury could be expected to be capable of disregarding what the complainant had said as to who he thought was behind the creation of the third statement; and (ii) the direction to do so did not require the jury to engage in intellectual gymnastics.
4. As to the second strand of the appellant's argument, the judge told the jury, in the directions summarised at [76](2) and [77](2) and (3) above, that they must not speculate as to why Mr Curry acted in the way described by the complainant. There is no reason to apprehend that, despite the directions, the jury might have been incapable of resisting the temptation to speculate that the appellant was involved in that conduct. That is particularly so given the only information which the jury had about the content of the third statement was that it retracted the identification of Mr Noormets (as opposed to the appellant).
5. Further, in relation to both strands of the appellant's argument, it is significant that her Honour explained, in cogent and readily understandable terms, why there was no basis for the complainant's speculation as to who Mr Curry was acting for and why the jury should not speculate as to that matter. The judge said to the jury:[110]

And you have no way of knowing whether this Simon Curry, whoever he is, was acting off his own bat out of some sense of friendship or loyalty or for some entirely different reason that we know nothing about, or whether he was acting on behalf of someone who is not any of these accused but had some interest in this matter or some other motivation that we know nothing about.

In addition, logically, a person might seek to prevail upon a witness to sign a statement to change his evidence out of a desire to thwart an investigation because the allegations are true and the people he accuses are guilty. But equally, a person might seek to prevail upon a witness to make him change his evidence because the witness is lying and the people he accuses are innocent. And that is why the actions of Mr Curry, whoever he is, whatever motivated him, truly do not assist you to judge what occurred on the night of 12 June 2017.

... And engaging in your own guesswork about what may have motivated Simon Curry to so act will not assist you to determine what happened on the night of 12 June 2017.

1. Her Honour's direction, and in particular the part of the direction quoted above, would have demonstrated that any speculation, on the part of the jury, as to who might have been behind Mr Curry acting in the manner the complainant described, would have proceeded on a faulty premise. We are satisfied that this direction would have curbed any inclination, on the part of the jury, either to have regard to Mr Curry's speculation, or themselves to speculate in this way and to bring the result of such speculation to bear on their deliberations.
2. For these reasons, while we would grant leave to appeal, the ground of appeal is not made out.

1. For the above reasons, we would make orders that:

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

[81] Ground 2 was abandoned at the hearing: appeal ts 15.

[82] Particular 1.1, 1.2; appellant's amended submissions [3] ‑ [4]; appeal ts 4.

[83] See appellant's submissions [50] - [60]; appeal ts 4 ‑ 9.

[84] House v The King [1936] HCA 40; (1936) 55 CLR 499.

[85] Appellant's amended submissions [5].

[86] Appellant's amended submissions [6].

[87] Appellant's amended submissions [7]; Rankins v The State of Western Australia [2018] WASCA 138.

[88] Appellant's amended submissions [8] ‑ [9].

[92] Appeal ts 4 ‑ 5, 6 ‑ 7; appellant's amended submissions [8].

[94] Kitto v The State of Western Australia [2019] WASCA 161 [66] ‑ [69].

[105] R v Glennon [1992] HCA 16; (1992) 173 CLR 592, 603; Gilbert v The Queen [2000] HCA 15; (2000) 201 CLR 414 [13]; Dupas v The Queen [2010] HCA 20; (2010) 241 CLR 237 [29]; Lane v The Queen [2018] HCA 28; (2018) 265 CLR 196 [42]; Huggins v The State of Western Australia [2018] WASCA 61 [488] ‑ [489]; Rankins [52], [140]; YBG v The State of Western Australia [2019] WASCA 126 [105]; Kitto [90].

[106] Glennon (603); Dupas [29]; Huggins [488].

[109] See [50] above.