THE STATE OF WESTERN AUSTRALIA -v- B W [2021] WASC 326 (2 October 2021)

4 Counsel for the accused has indicated that, at trial, it will not be in issue that the accused discharged his police-issued firearm and a single bullet struck Ms Clarke, who died of her injuries.

5 The terms of the Use of Force Policy, and the admissibility of evidence as to its contents, are uncontroversial. Below, I summarise the most relevant parts of the Use of Force Policy for present purposes.

6 The Use of Force Policy begins with the following purpose statement:

Any Use of Force MUST be reasonably necessary in the circumstances and members will be individually accountable for such force[.] (emphasis in original)

7 The Use of Force Policy then describes the Police Situational Tactical Options Model (STOM), in the following terms:

The STOM is a judgmental decision making process to guide members when responding to operational policing tasks while maintaining member safety, continuous assessment and re-assessment as the primary responsibility.

All members are reminded that in the operational environment they may be required to use a variety of tactical options at any time. The selection of tactical options is not a linear progression. Members must be cognisant of all available tactical options before committing to any course of action and be prepared to escalate or de-escalate as the circumstances dictate.

The framework of the STOM comprises:

• Information and intelligence
• Situational appreciation (including risk and threat assessment)
• Powers and policy
• Tactical options
• Actions and outcomes

8 The Use of Force Policy then describes the following operational safety principles:

Members must be cognisant that the use of tactical options in certain circumstances may cause serious injury and must ensure they use the minimal amount of force required to reduce a threat and gain control. Once control has been achieved, lower force options are to be employed at the earliest opportunity.

Members must ensure that they do not use excessive force and, in particular, do not use:

• any force where none is needed
• more force than is needed
• any force or a greater level of force after the necessity for it has ended.

9 The provisions of the Use of Force Policy relating to the drawing and discharge of firearms, in tabular and diagrammatic form, are to the following effect:

(1) In appropriate circumstances members can elect to use a firearm as a tactical option to reduce a threat and gain control of a subject.

(2) A firearm can be drawn to reduce a threat and gain control of a subject where the member reasonably suspects there is a risk of grievous bodily harm or death to any person.

(3) A firearm can be discharged to reduce a threat and gain control of a subject where the member reasonably believes there is an imminent risk of grievous bodily harm or death to any person.

(4) When using a firearm as an appropriate tactical option a member must ensure that their use is in accordance with relevant legislation, WA Police policy and the training and guidelines of WA Police Force Operational Safety and Tactics Training Unit.

(5) Any use of force must be reasonably necessary in the circumstances and members will be individually accountable for such force.

10 Various terms used in the above provisions are defined in the Use of Force Policy, including:

(1) 'Reasonably believes' means a reasonable amount of suspicion supported by circumstances which, when judged objectively, are reasonable and sufficiently strong to justify a belief that certain facts are probably true.

(2) 'Imminent' means something that will happen at any moment.

(3) 'Risk' means the danger or potential that the pre-requisite extent of injury, as described in the justification for use of a tactical option, will occur.

(4) 'Grievous Bodily Harm' means any 'Bodily Injury' of such a nature as to endanger, or be likely to endanger life, or to cause, or be likely to cause, permanent injury to health.

(5) 'Bodily Injury' means something in the nature of damage to bone, muscle, tendon, skin, organ or any part of which the human body is constructed. The word relates to more than merely a sensation of pain.

11 Mr Markham is described as a 'Capability Advisor - Use of Force' for WA Police Operational Safety and Tactics Training (OSTT) at the WA Police Academy, where he has worked since June 2007. OSTT is a section of the WA Police Force responsible for training officers and developing policies in relation to, among other things, the use of force by police officers. Mr Markham's report was prepared for the following stated purpose:

Subject matter advice is sought from [OSTT] to determine whether the actions of the WA Police Force officers attending this incident and specifically the actions of [the accused], were in accordance with relevant WA Police Force Use of Force policies and the training and guidelines of OSTT.

12 It is not controversial that Mr Markham is able to give evidence as to the content of the Use of Force Policy, and the training provided to the accused and other police officers who were in attendance at Petchell Street on 17 September 2019. This includes evidence about the WA Police STOM. It is also not controversial that Mr Markham is able to give evidence as to technical matters concerning the operation of Tasers and the information downloaded from the Tasers carried by police officers attending at the scene.

13 The controversial aspect of Mr Markham's report concerns his opinions as to the 'appropriateness' of the drawing and discharge of a firearm in certain assumed circumstances and whether drawing and discharging a firearm in those circumstances would be 'in accordance with relevant legislation, WA Police Force policy and the training and guidelines of OSTT'.[1]

14 Counsel for the accused indicates that she seeks to adduce evidence from Mr Markham in cross-examination in relation to these matters as expert opinion evidence.[2] However, in advancing that submission counsel accepts that Mr Markham will not be able to express his opinion in the terms contained in the parts of his report referred to in the previous paragraph.[3]

15 Counsel for the accused accepts that Mr Markham cannot give evidence as to the ultimate issue of whether the accused's actions were lawful or whether the actions of the accused or other police officers were in accordance with legislation.[4] Counsel also accepts that she cannot ask Mr Markham questions that 'specifically require the witness to answer whether or not the accused's actions that night were lawful or in accordance with policy'.[5]

16 Counsel for the accused submits that Mr Markham can give evidence 'that interprets and/or applies [police] training and policy to the circumstances of this case'.[6] Counsel submits that she can question Mr Markham about how police policies and training apply in certain factual circumstances, providing the assumptions underpinning the questions posed are appropriately framed.[7] She contends that Mr Markham can give evidence as to whether particular actions in particular circumstances by a police officer are consistent with policy, or police training, or both.[8]

State's position as to admissibility of Mr Markham's evidence

17 The Director of Public Prosecutions accepts that Mr Markham can give evidence as to the content of the Use of Force Policy and the training as to the use of firearms which has been given to the accused in particular, and police officers in general. The State itself proposes to lead evidence as to these matters from Mr Markham.

18 However, the Director contends that Mr Markham cannot give admissible evidence as to his opinion of the meaning of the Use of Force Policy, or as to how the policy should be applied to particular factual circumstances which have not been the subject of particular training scenarios. Nor, in the Director's submission, can Mr Markham give evidence as to whether certain conduct is in accordance with, or is consistent with, the Use of Force Policy.

19 Counsel for the accused accepts that the evidence she seeks to lead from Mr Markham is opinion evidence, and seeks to justify its admission on the basis it is expert opinion evidence.

20 Opinion evidence is not generally admissible in a criminal trial. However, in defined circumstances 'expert' opinion evidence may be given by a witness of specialised knowledge, derived from study or experience, on a subject for which unqualified persons require that assistance to form a sound judgment. The conditions for the admission of evidence of this kind were summarised by the Court of Appeal in Liyanage v The State of Western Australia:[9]

An affirmative answer must be given to at least the following four questions before 'expert' opinion evidence on a scientific subject matter will be admissible:

1. Is the opinion relevant; ie could the evidence rationally affect, directly or indirectly, the assessment of the probability of the existence of a fact in issue in the proceedings?

2. Is a person of ordinary experience unable to form a sound judgment on the subject matter without the assistance of an 'expert' witness with special knowledge or experience in the area?

3. Is the subject matter part of a body of knowledge or experience that is sufficiently organised or recognised to be accepted as a reliable body of knowledge or experience?

4. Has the witness acquired, by study or experience, sufficient knowledge of the subject to render her opinion of value in resolving the issues before the court?

21 While Mr Markham's opinion is not on a 'scientific' subject matter, the above questions remain relevant to an assessment of whether his opinion is admissible on the basis that it is expert opinion evidence. In oral submissions, counsel for the accused accepted that affirmative answers must be given to these four questions before Mr Markham's opinion as to the meaning and implementation of the Use of Force policy is admissible as evidence in the accused's trial.[10]

22 Counsel for the accused also referred to a first instance evidentiary ruling of Hiley J in the Supreme Court of the Northern Territory in R v Sayson.[11] In that case, in which a police officer was charged with assault, Hiley J ruled that he would allow another police officer to give an opinion as to the necessity for the accused police officer in that case to have used the force that he did and whether the force used was consistent with the training that police officers were given. However, the factual context in that case was quite different, and the details of the evidence to be led in that case is not entirely clear from his Honour's reasons for decision. Further, Sayson was decided under s 79 and s 80 of the Evidence (National Uniform Legislation) Act 2011 (NT). Significantly, Hiley J noted that s 80 'replaces the old common law rules and enables opinion evidence to be adduced even if it is about a fact in issue or an ultimate issue of a matter of common knowledge'.[12] I have not found Sayson, decided in that different statutory context, to be of assistance in the present case.

23 I turn to address the first question identified in Liyanage, concerning the relevance of Mr Markham's opinion evidence.

24 I begin the determination of the relevance of the evidence by identifying the statutory provisions which define the matters which the State will be required to prove at trial.

25 Under s 270 of the Criminal Code (WA) (Code), any person who causes the death of another, directly or indirectly, by any means whatever, is deemed to have killed that other person. Under s 268 of the Code, it is unlawful to kill any person unless such killing is authorised or justified or excused by law. Section 277 of the Code provides that any person who unlawfully kills another is guilty of a crime which, according to the circumstances of the case, may be murder or manslaughter.

26 Relevantly for the present case, s 279(1) of the Code provides that:

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; ...

the person is guilty of murder.

27 Under s 280(1) of the Code, if a person unlawfully kills another person under such circumstances as not to constitute murder, the person is guilty of manslaughter.

28 In the present case, it is not controversial that the accused killed Ms Clarke. A critical question which is contentious is whether he did so unlawfully, ie whether the killing of Ms Clarke was authorised or justified or excused by law.

29 One of the bases on which counsel for the accused contends that the killing of Ms Clarke was authorised, justified or excused by law was that it was an act done in self-defence.

30 Section 248(2) provides that a harmful act done by a person is lawful if the act is done in self-defence under s 248(4). Section 248(4) of the Code provides:

A person's harmful act is done in self-defence if -

(a) the person believes the act is necessary to defend the person or another person from a harmful act, including a harmful act that is not imminent; and

(b) the person's harmful act is a reasonable response by the person in the circumstances as the person believes them to be; and

(c) there are reasonable grounds for those beliefs.

31 As explained by Buss JA in Goodwyn v The State of Western Australia,[13] where (as appears likely in the present case) the accused satisfies the evidential onus in relation to self‑defence then the burden is on the State to negate the defence by excluding at least one of the following four elements beyond reasonable doubt:

(1) The accused subjectively believed the harmful act was necessary to defend the accused or another person from a harmful act, including a harmful act that was not imminent: s 248(4)(a).

(2) The accused's harmful act was an objectively reasonable response by the accused in the circumstances as the accused subjectively believed them to be: s 248(4)(b).

(3) There were objectively reasonable grounds for the accused's subjective belief that the harmful act was necessary to defend the accused or another person from a harmful act, including a harmful act that was not imminent: s 248(4)(a) read with s 248(4)(c).

(4) There were objectively reasonable grounds for the accused's subjective belief as to the circumstances: s 248(4)(b) read with s 248(4)(c).

32 As the court noted in Liyanage,[14] s 248 of the Code does not require the jury to make an objective assessment of the risk of harm faced by an accused or another person. Section 248(4)(a) raises the question of whether the accused subjectively believed the act was necessary to defend the person or another person from a harmful act. Section 248(4)(c) raises the question of whether there were reasonable grounds for that belief. The reference to reasonable grounds for a belief is to grounds which would induce the relevant belief in a reasonable person.[15] In the context of s 248, this must be a reasonable person in the position of the accused.

33 In the present case, the accused's alleged harmful act (the act which caused Ms Clarke's death) is the discharge of a firearm that was pointed at Ms Clarke. The harmful act of Ms Clarke which the proposed evidence is capable of suggesting the accused was defending against is stabbing or cutting someone with the knife and/or scissors (which would be the act constituting an offence of at least wounding contrary to s 301 of the Code and an assault causing bodily harm contrary to s 317 of the Code).

34 Therefore, putting aside questions of the onus or standard of proof for present purposes, whether the accused was acting in self-defence in the present case will turn on whether:

(1) the accused subjectively believed that discharging a firearm pointed at Ms Clarke was necessary to prevent Ms Clarke from stabbing or cutting someone with the knife and/or scissors;

(2) there were objectively reasonable grounds for the accused's subjective belief that discharging a firearm pointed at Ms Clarke was necessary to prevent Ms Clarke from stabbing or cutting someone with the knife and/or scissors;

(3) discharging a firearm pointed at Ms Clarke was an objectively reasonable response by the accused in the circumstances as he subjectively believed them to be; and

(4) there were objectively reasonable grounds for the accused's subjective belief as to the circumstances.

35 Counsel for the accused accepted that the factual questions raised by s 248 of the Code in this case were appropriately framed in the above terms.[16]

36 Counsel for the accused also anticipated a contention that s 25 of the Code authorised, justified or excused the killing of Ms Clarke. Section 25 provides:

(1) This section does not apply if section 32, 246, 247 or 248 applies.

(2) A person is not criminally responsible for an act done, or an omission made, in an emergency under subsection (3).

(3) A person does an act or makes an omission in an emergency if -

(i) circumstances of sudden or extraordinary emergency exist; and

(ii) doing the act or making the omission is a necessary response to the emergency;

and

(b) the act or omission is a reasonable response to the emergency in the circumstances as the person believes them to be; and

(c) there are reasonable grounds for those beliefs.

37 A question may arise as to whether, in the present case, s 25(1) of the Code provides for the section not to apply, on the basis that s 248 applies. It is unnecessary to resolve that question at this stage. In their application to the circumstances of this case, the provisions of s 25 are likely to raise substantially the same questions as are raised by s 248 of the Code. Counsel for the accused conceded that, if Mr Markham's opinion was not relevant to the issues raised by s 248 of the Code, s 25 of the Code would not provide for any additional basis for contending it was relevant.

38 Counsel for the accused also anticipated a contention that the accused was arresting Ms Clarke, or assisting another officer to arrest Ms Clarke, when he discharged his firearm. She anticipated contending that the use of force involved in the discharge of the firearm pointed at Ms Clarke was authorised in these circumstances. I note the following statutory provisions of potential relevance to that issue.

39 Section 31(1)(a) of the Code relevantly provides that a person is not criminally responsible for an act done in execution of the law.

40 Section 231(1) of the Code relevantly provides that it is lawful for a person who is engaged in making an arrest, and for any person lawfully assisting him, to use such force as may be reasonably necessary to overcome any force used in resisting such arrest. Under s 231(2)(b), in determining whether any arrest might have been made in a less forcible manner, account shall be taken, if it was practicable to do so at the time, of whether the person making the arrest gave notice of the cause of the arrest.

41 Section 260 of the Code provides that, in any case in which the use of force by one person against another is lawful, the use of more force than is justified by law under the circumstances is unlawful.

42 Under s 16 of the Criminal Investigation Act 2006 (WA):

(1) When exercising a power in this Act, a person may use any force against any person or thing that it is reasonably necessary to use in the circumstances -

(a) to exercise the power; and

(b) to overcome any resistance to exercising the power that is offered, or that the person exercising the power reasonably suspects will be offered, by any person.

(2) If under subsection (1) a person uses force, the force may be such as causes damage to the property of another person.

(3) Any use of force under subsection (1) against a person is subject to The Criminal Code Chapter XXVI.

43 Section 231, s 248 and s 260 of the Code are all in ch XXVI of the Code.

44 Under s 128(2) of the Criminal Investigation Act (read with s 127), a police officer may arrest a person for a serious offence, without warrant, if the officer reasonably suspects that the person has committed, is committing, or is about to commit, the offence.

45 Counsel for the accused anticipated contending that the accused's discharge of his firearm while it was pointed at Ms Clarke was reasonably necessary in the circumstances to exercise the power of arrest or to overcome resistance to the exercise of that power that was offered, or the accused reasonably suspected would be offered, by Ms Clarke.

46 I have not had the benefit of any detailed submissions at this stage as to the interaction of the above provisions and their operation and effect, including as to what is involved in a conclusion that the use of a certain degree of force is 'reasonably necessary'. It is unnecessary to resolve any of these issues at this stage for the purposes of making a ruling as to the admissibility of evidence. It is also unnecessary to determine at this stage whether, and to what extent, the above provisions authorise the application of lethal force to effect an arrest of a person. Nor am I required to make any determination at this stage as to whether the evidence to be led at trial is capable of raising a reasonable doubt as to whether the killing of Ms Clarke was authorised as an incident of a power to arrest her in the circumstances of this case. Nothing in these reasons should be taken to determine any of these matters.

47 Counsel for the accused submitted that Mr Markham's opinion as to the application of the policy was relevant to both the objective and subjective elements of s 248 of the Code and s 16 of the Criminal Investigation Act. For present purposes, it is sufficient to focus on the elements of self-defence in s 248 of the Code.

48 Counsel submitted that Mr Markham's opinion was relevant to the objective aspects of s 248 as, if the accused was acting in a manner which was consistent with police policy as it had been taught to him, his conduct was more likely to be an objectively reasonable response.

49 Counsel submitted that Mr Markham's opinion was relevant to the subjective aspects of s 248 as the accused was more likely to have honestly believed that discharging a firearm pointed at Ms Clarke was reasonably necessary if that belief was consistent with police policy as it had been taught to him.

50 The question of whether the drawing and discharge of a firearm in the circumstances of this case was, or was not, in accordance with the Use of Force Policy is capable of informing the question of whether the accused's action was reasonable in the circumstances as he believed them, on reasonable grounds, to be. A use of force which is consistent with police policy is more likely to be regarded as a reasonable response than a use of force which the policy forbids. It is for at least that reason that evidence as to the content of the Use of Force Policy is admissible.

51 However, Mr Markham's opinion as to whether or not particular conduct is in accordance with the Use of Force Policy does not make it more or less likely that the accused's conduct was reasonable in the relevant circumstances. Nor does Mr Markham's opinion as to that matter, which had not been expressed to the accused prior to the accused engaging in the conduct, make it more or less likely that the accused had any particular belief as to the content of the policies and training. Nor does Mr Markham's opinion as to that matter, which had not been expressed to the accused prior to the accused engaging in the conduct, make it more or less likely that there were reasonable grounds for the accused to have any particular belief as to the content of the policies and training. That opinion also does not make it more or less likely that the accused subjectively believed the use of force to be reasonably necessary to defend against Ms Clarke stabbing or cutting someone.

52 Therefore, subject to the possible qualification in the next paragraph, Mr Markham's opinion as to whether certain conduct was, or was not, in accordance with the Use of Force Policy is not itself relevant to any fact in issue in the proceedings.

53 In my view, the only possible relevance of Mr Markham's opinion as to the Use of Force Policy would arise if the jury required explanation of the meaning and operation of the policy in order to make their own assessment of whether the accused's conduct was in accordance with the policy. That issue is best dealt with under the rubric of the second question identified in Liyanage.

Ability of jurors to form a sound judgment without expert assistance

54 In my view, there is nothing in the terms of the Use of Force Policy which a jury requires expert evidence to properly understand. In my view, a person of ordinary experience is able to form a sound judgment on the meaning and effect of the policy without the assistance of an 'expert' witness with special knowledge or experience in the area.

55 Whether the discharge of the accused's firearm in this case was or was not in accordance with the Use of Force policy will in part turn on whether the accused, when he discharged the firearm, reasonably believed that there was an imminent risk of grievous bodily harm or death to any person. The questions raised by the policy are similar to those raised by s 248 of the Code, and do not involve concepts which a person of ordinary experience requires expert assistance, beyond the directions which will be given to the jury by the court, to understand.

56 It follows from this conclusion that, while evidence of the content of the Use of Force Policy is admissible at the accused's trial, evidence of the opinion of a person other than the accused (which was not expressed or conveyed to the accused prior to the discharge of the firearm pointed at Ms Clarke) as to the interpretation or effect of the policy is not admissible.

57 Even if (contrary to my view) affirmative answers could be given to the first two questions identified in Liyanage, there is no evidence in this case that Mr Markham's opinion forms part of a body of knowledge or experience that is sufficiently organised or recognised to be accepted as a reliable body of knowledge or experience.

58 The accused's submissions describe the relevant area of expertise as 'the application of police policy and training to practice'.[17] The written submissions also refer to the 'interplay between the policies, the manner in which the policies are taught to police recruits and how these policies are applied in practical situations'.[18]

59 There is no evidence before me which establishes that the interpretation of the meaning and effect of police policies is an organised body of knowledge and experience which is sufficiently reliable to allow for expert opinion evidence to be given on that topic.

60 There is also a question of Mr Markham's qualification to express an opinion as to whether certain conduct is or is not in accordance with the Use of Force Policy which arises out of the terms of the policy.

61 The question arises because the policy, in its terms, only allows for the discharge of a firearm which is 'in accordance with relevant legislation'. Therefore, a conclusion of the lawfulness of the conduct is inherent in any conclusion about whether particular conduct is in accordance with the policy.

62 The problem which this aspect of the policy raises for the admissibility of Mr Markham's opinion as to the meaning or application of the policy is twofold. First, there is nothing to suggest that Mr Markham has any legal training that would qualify him to express a view as to whether particular conduct was, or was not, in accordance with relevant legislation so as to be capable of being regarded as being in accordance with the policy. Secondly, the expression of the opinion that conduct is in accordance with the policy necessarily involves the expression of an issue as to the application of a legal standard which is a matter for determination by the court rather than a person involved in the training of police officers.[19]

63 Counsel for the accused properly accepts that she cannot ask Mr Markham to express an opinion about the lawfulness of conduct or whether conduct is in accordance with legislation. However, such an opinion is inherent in any opinion about whether conduct is in accordance with or consistent with the Use of Force Policy.

64 For the above reasons, I agree with the Director's submissions summarised at [17] - [18] above.

65 Mr Markham can give evidence as to the content of the Use of Force policy and the training given in relation to it.

66 However, Mr Markham cannot give evidence of his opinion as to the proper interpretation of the policy or how the policy should be applied to particular factual circumstances which have not been the subject of particular training scenarios. Nor can Mr Markham give evidence expressing a general opinion as to whether certain conduct is in accordance with, or is consistent with, the Use of Force Policy.

67 Paragraphs 337, 351 - 354, 356, 390, 518 - 520 (the section not in yellow), 627 - 628 and 630 - 631 all express opinions of the kind described in the previous paragraph. I agree with the State (as counsel for the accused ultimately accepted) that evidence of Mr Markham's opinion in the terms expressed in those paragraphs is not admissible in the trial of the accused. The parties agree that the material in pars 17 ‑ 20 and 28 of Mr Markham's report would only be led if his opinion evidence was admissible.

68 In her oral submissions, counsel for the accused described in general terms the controversial questions which she would seek to ask Mr Markham in cross-examination.

69 Some of those questions were framed in terms of whether certain training was given to police officers.[20] Those questions are unobjectionable, and the Director indicated that she did not object to questions of that nature being asked.[21]

70 Other anticipated questions in cross-examination were expressed in terms of whether certain matters would be consistent with police policy. For example, counsel anticipated asking Mr Markham whether it would be consistent with police policy as taught to police for an officer deciding whether to discharge a firearm to take account of particular factors.[22] In my view, a question in that form is not permissible as it calls for the expression of an opinion as to the meaning and effect of the Use of Force Policy. However, the question could be framed in a different way which would be permissible. For example, it would be permissible to ask Mr Markham whether police were trained to take particular matters into account when deciding whether to discharge a firearm. A question framed in those terms only calls for an answer as to the content of training given to police, and does not call for the expression of an opinion as to the meaning or effect of the Use of Force Policy.

71 Counsel for the accused also anticipated asking Mr Markham whether, if an officer apprehended that one of his or her fellow officers was in close proximity to a person armed with a knife and was at risk, the policy as taught to police officers would allow for a police officer to consider whether to discharge the officer's firearm and in fact, on some occasions, discharge his or her weapon.[23] In my view, a question framed in those terms would impermissibly invite the witness to express an opinion as to the meaning and effect of the Use of Force Policy. However, Mr Markham could, for example, be asked whether police officers are trained to consider discharging a firearm when they apprehend a fellow officer to be in close proximity to a person armed with a knife and at risk.

72 That is, Mr Markham can give evidence about the content of the training given to police, either in relation to the application of the Use of Force Policy or in relation to the use of force generally. However, he cannot give evidence of his opinion as to how the policy might be interpreted or applied to circumstances which have not been the subject of any training scenario. He cannot be asked to express a general opinion as to whether particular conduct of the accused or other police officers at the scene of Ms Clarke's death was in accordance with, or consistent with, the Use of Force Policy (or with that policy as it is taught to police).

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

[1] In particular, pars 390, 518 - 520 (the section not highlighted in yellow), 627 - 628 and 630 - 631 of Mr Markham's Report.

[4] Accused's written submissions dated 22 September 2021, pars 6.1 - 6.2.

[5] Accused's written submissions dated 22 September 2021, par 6.5.

[6] Accused's written submissions dated 22 September 2021, par 6.4.

[7] Accused's written submissions dated 22 September 2021, par 6.6.

[8] Accused's written submissions dated 22 September 2021, par 15.

[9] Liyanage v The State of Western Australia [2017] WASCA 359; (2017) 51 WAR 359 [122].

[11] R v Sayson [2016] NTSC 60.

[13] Goodwyn v The State of Western Australia [2013] WASCA 141; (2013) 45 WAR 328 [95] - [96], Martin CJ agreeing at [1], Mazza JA to a similar effect at [170] - [174].

[15] George v Rockett [1990] HCA 26; (1990) 170 CLR 104, 112.

[17] Accused's written submissions dated 22 September 2021, par 6.7.

[18] Accused's written submissions dated 22 September 2021, par 19.

[19] R v Palmer [1981] 1 NSWLR 209, 214.