THORNS -v- THE STATE OF WESTERN AUSTRALIA [2022] WASCA 127 (24 October 2022)

1. The State's case was that, in the early hours of 3 April 2014, the appellant killed the deceased in circumstances amounting to the crime of murder.[2] The State's case was that the appellant stabbed the deceased in her chest with a knife in the course of a domestic argument and that the appellant intended to kill the deceased or, at the very least, intended to cause a bodily injury, the nature of which endangered the deceased's life or was likely to endanger the deceased's life.[3]
2. The State said that the appellant, who has a military background, purchased the knife, which he knew to be a dagger used by commandos and special forces soldiers.[4] This knife penetrated the layers of clothing worn by the deceased, including a jacket, hoodie, and t‑shirt, as well as her skin, subcutaneous fat and muscle.[5] It then passed through an artery and one of the chambers of the deceased's heart. The length of the wound track was approximately 11.5 cm.[6]
3. Towards the end of 2008, the deceased and the appellant met and started a relationship.[7] The relationship was 'on-off'. The deceased was an alcoholic. On the night of her death, the deceased's blood alcohol content was 0.185. Often the appellant and the deceased would drink together to excess. There were many violent confrontations between them during the years of their relationship.[8] It was not in dispute that the appellant and the deceased were both violent towards each other.[9]
4. After an incident at the appellant's house in November 2013, the appellant obtained a Violence Restraining Order (VRO) against the deceased and they separated. In mid-March 2014, they got back in contact and discussed getting back together, discussed amending the VRO, and, on about 20 March 2014, the deceased moved back into the appellant's house.[10]
5. On 2 April 2014, the appellant and deceased were drinking at the appellant's house. In the early hours of 3 April 2014, the appellant stabbed the deceased. They were the only people at the house. The only eyewitnesses to the offending were the deceased and the appellant. The emergency services personnel arrived at about 2.30 am on 3 April 2014.[11]
6. The State said that the appellant claimed, in his police interview, that the deceased 'came onto the knife herself'.[12] The State pointed to inconsistencies between what the appellant said in his 000 call and in his police interview about the timing of events. The State case was that, in his 000 call, the appellant said what had actually happened - that is, that the deceased was stabbed in a domestic argument and that 'it was me, mate'.[13]
7. The State told the jury that they would hear evidence from a blood pattern specialist, Sergeant Blaver. The State said that the blood pattern evidence would show that the exact placement of events was inconsistent with where the appellant said the events occurred.[14] Among other things, the State submitted that bloodstains on the door of the kitchen cupboard were not consistent with what the appellant had told police because they suggested that the bloodshed event had occurred in the corner of the kitchen bench.[15]
8. The State directed the jury's attention to text messages sent by the appellant to his ex-girlfriend a week prior to the offence in which he said that he was getting drunk and wanted to 'kill the cunt', which the State said was a reference to the deceased. The State said that the messages demonstrated the disinhibiting effect that alcohol had on the accused, which allowed him to indulge in his violent feelings towards the deceased. This could assist the jury to determine whether the deceased was killed or whether she was the victim of mischance.[16]
9. The State directed the jury's attention to text messages sent by the appellant to his ex-girlfriend and his ex-wife on the night of the offence, in which he said that he had cut the deceased's throat, was waiting for the police, and would be going to jail.[17]
10. The State argued that the depth and nature of the stab wound, the weapon and what was on it, the circumstances of the evening, the relative heights of the deceased and accused, and the height of the stab wound on the deceased's chest are all consistent with a horizontal thrust by the accused with the knife and are inconsistent with the deceased lunging at the knife.[18]
11. The State argued that the nature of the weapon and the nature and location of the wound would suggest an intention to kill or, at the very least, an intention to do a serious, life-threatening bodily injury. The State said it was not their case that the accused held the relevant intention for an extended period of time, or that the murder was pre-meditated.[19] The prosecutor identified a critical question as being whether the jury could be satisfied beyond reasonable doubt that the appellant stabbed the deceased by his own act, of his own will.[20]
12. The State said that s 266 of the Code, which concerns the duty of those in charge of dangerous objects, could be an 'alternate path to the offence of manslaughter', if the State did not disprove that the stabbing was an unwilled act.[21]

1. Defence counsel began by directing the jury's attention to the evident distress of the appellant in his 000 call and in his reaction to being told that the deceased was life extinct. Defence said that this was indicative of a person who was very distressed and inconsistent with someone who had an intention to kill the deceased.[22]
2. Defence counsel emphasised that the appellant was very cooperative with police, including throughout his almost five-hour long police interview.[23]
3. Defence counsel said that there are a number of circumstances in which killing may be authorised, justified, or excused by law. Defence counsel read out s 23A(2) of the Code, which provides for the unwilled act defence.[24]
4. The appellant is a retired soldier in the Australian Army and British Army.[25] The appellant has been treated for post-traumatic stress disorder (PTSD) as a result of his time with the Australian forces.[26] The appellant met the deceased in hospital while undergoing treatment for PTSD; the deceased was in hospital for treatment for alcoholism. Their relationship was volatile, marred by excessive alcohol consumption by both parties, but mostly by the deceased, and multiple incidents of domestic violence.[27]
5. Defence counsel said that there was evidence that, when the deceased was sober, she was loving, but, when she was intoxicated, she was uncontrollable and prone to outbursts of physical and verbal abuse. Defence counsel said that this evidence provided context for the relationship of the appellant and deceased and might shed some light on what happened on 3 April 2014.[28]
6. After an incident on 23 November 2013, which left the appellant with injuries, the appellant and deceased broke up and the appellant obtained a VRO against the deceased.[29] In early March 2014, the parties reconciled and were living at the appellant's property.[30]
7. Defence counsel described the defence version of events as follows. The deceased and appellant were talking together on the patio of the appellant's house and started drinking in the afternoon of 2 April 2014. The appellant told the deceased that she needed to move out if she didn't get help for her alcoholism. The deceased became upset, went into the house, and came out holding two beer bottles in one hand and a knife in its scabbard in the other. The deceased sat down and held onto the knife, waving it around and pointing it towards the appellant and then towards herself.[31] At some stage, the appellant grabbed the deceased's wrist and tried to get the knife from her. The deceased resisted and the knife cut her neck. The appellant got the knife from the deceased and bandaged her wound. They continued talking and drinking on the patio. The deceased started raving and punching the appellant. She went inside to the kitchen; the appellant followed her. The deceased got the knife and was pointing the end of the knife alternately at herself and at the appellant. The appellant wrenched the knife out of her hand, while using his body to push her back. The appellant stepped back. The deceased suddenly lunged herself at the appellant and impaled herself on the knife he was holding.[32] The appellant then pulled out the knife and called 000.[33]
8. Defence counsel said that, according to the evidence of Dr Moss, a forensic pathologist, 'surprisingly little force would have been required' to stab the deceased in the chest.[34]
9. Defence counsel made various admissions, including that the deceased died on 3 April 2014 from a penetrating sharp force injury to her chest from a knife.[35]
10. Evaluation of the issues raised on appeal is assisted by considering, in some detail, the evidence given by the appellant at trial.

1. The appellant is a retired soldier. The appellant said that he told the truth as best as he could in his police interview.[36]
2. The appellant joined the Australian Navy when he was 15 years old. He later left the Navy and joined the Australian Army.[37] The appellant's experiences in the Navy caused him 'major problems' and he started drinking very heavily.[38] In about 2000, the appellant was diagnosed with PTSD.[39]
3. In 1988, when he was still in the Army, the appellant tried to commit suicide by ringing up the police and saying that he was armed and that he was going to do something if they didn't come. The appellant was arrested, discharged from the Army, pleaded guilty and received 18 months' probation.[40]
4. After he stopped working in about 2002 due to injuries, the appellant was experiencing recurring flashbacks and nightmares more frequently. He 'had a few goes at getting rid of [himself]'.[41] The appellant saw a psychiatrist and was given a lot of medication. The appellant had a 'massive breakdown' in 2008 and was committed to hospital.[42]
5. While at the hospital, the appellant met the deceased who was there for alcoholism. They began a relationship in October 2008. The deceased moved in with the appellant in 2009.[43]
6. Alcohol became an issue in the relationship between the appellant and the deceased. When the deceased was intoxicated, especially after an argument with her husband, she would scream, throw things, slap, punch, and kick the appellant.[44]
7. The appellant was also drinking during his relationship with the deceased, but not as frequently as the deceased. The deceased drank every day, whereas the appellant could go for two or three weeks without a drink.[45] In 2013, the deceased's drinking was 'same as always'; she was drinking every day. By 2013, the appellant had increased his drinking, but would still go days without drinking.[46]
8. Around the middle of 2009, the violence became 'quite severe' and the appellant called the police. When the deceased was under the influence of alcohol, her conduct became 'really scary' - she would rave, slap, hit, punch, and stab the appellant.[47]
9. Initially, the appellant tried to respond to the violence by walking or driving away. Eventually, he hit the deceased back. The police were involved many times; often at the request of the appellant.[48]
10. In probably about 2010, there was an incident where the deceased became violent and the appellant threw her to the floor. Usually, the appellant would do so by pushing one hand onto the deceased's upper chest and placing one hand behind her head. Usually, this calmed the deceased. However, during the 2010 incident, the appellant did not put his hand behind the deceased's head. The deceased's head was injured. The police came and the appellant was ultimately sentenced to 12 months, but was not imprisoned.[49]
11. The appellant recounted other instances where the deceased was violent towards him and others, and where the police became involved, including some instances where the appellant retaliated towards the deceased.[50] The appellant said that these incidents 'became the norm'.[51]
12. At some time in about 2010, the appellant and the deceased broke up. The deceased moved out.[52] The appellant described an incident where he returned to his house to find furniture damaged and stolen. The appellant reported it to the police and applied for a VRO against the deceased.[53] The VRO was never served. The appellant and the deceased reconciled, but lived in separate houses.[54]
13. In around October - November of 2011, until about August 2012, the appellant lived in Townsville. The deceased went with him.[55] In Townsville, there were about six incidents of alcohol‑fuelled violence instigated by the deceased involving the police, one of which involved violent retaliation by the appellant.[56] By the time the appellant returned to WA, he had left the deceased.[57]
14. When the deceased returned to WA, the relationship resumed. In July 2013, the appellant and the deceased were living together. The appellant was stabbed and suffered a deep gash in his forehead.[58]
15. On 22 November 2013, the appellant broke up with the deceased.[59] On the following day there was a violent altercation between the appellant, the deceased, and a male friend of the deceased. The deceased whacked the appellant with a studded leather dog collar that had a steel buckle. The appellant called the police.[60] The appellant took photos of his injuries on his mobile phone.[61]
16. Shortly after this incident, the appellant applied for, and was granted, a VRO which was served on the deceased. The VRO was made final in about December 2013.[62] The appellant said that he sought the VRO because:[63]

I was continually being assaulted. I was threatened with assault. I had been threatened to have my arms and legs broken by people. I had [the deceased] threatening to come around and finish me off.

1. In February 2014, the deceased got in contact with the appellant through the deceased's son. The appellant and deceased met up in March 2014 and reconciled. The deceased moved back in with the appellant that day and they discussed varying or cancelling the VRO.[64]
2. The appellant said, in a text message he sent to his ex-girlfriend in which he said that he was drinking, that 'I want to kill the cunt'. The appellant explained, in his evidence at trial, that he was using a colloquial expression in relation to his beer; namely, that he meant he wanted to kill that 'cunt' of a beer.[65]
3. At the time when the deceased and appellant reconciled, the deceased's drinking was worse than before their separation.[66] The deceased's drinking improved slightly when she first moved back in with the appellant after their reconciliation.[67]
4. On 2 April 2014, the appellant and the deceased were chatting on the patio about holiday plans, while drinking tea and coffee.[68] The appellant saw the deceased drinking alcohol at around 2.00 pm, but did not know if she had started drinking earlier than that. The appellant started drinking a couple of hours after 2.00 pm.[69]
5. The appellant told the deceased that if she didn't control her drinking and violence, she would have to move out.[70] The deceased's face changed, becoming 'sort of sad'.[71] They continued talking and drinking.[72] Then, after yelling at the appellant, the deceased went inside and came out carrying two bottles of beer and a knife in a scabbard. This happened at maybe about 9.00 pm.[73] Previously, the knife had been on boxes just inside the door.[74]
6. The appellant had bought the knife from a website. It had been used for opening boxes and things 'like that'.[75]
7. The deceased and appellant continued drinking. The deceased played with the knife in her hands by twirling it around and handling it. At one point the knife somehow came out of its scabbard.[76]
8. The deceased started pointing and thrusting the knife at the appellant. The appellant moved back. The deceased leaned forward and then stood up. The appellant wrestled her for the knife. Somehow the knife cut the deceased on the left side of her neck, which started bleeding. The appellant took the knife inside, put it on the bench, and got the first aid kit from the bottom of the pantry. The appellant used the knife to open the first aid kit.[77]
9. After opening the first aid kit, the appellant left the knife on the bench and went outside to put a bandage on the deceased's neck. The appellant and the deceased continued drinking. The appellant wanted to call an ambulance, but the deceased refused.[78]
10. The appellant took photos of the deceased's neck wound on his mobile phone and sent them to his ex-wife.[79] He sent a text to his ex-girlfriend at 9.57 pm saying 'I have cut a cerin person's throght. Don't know if I should call anyone. I have patchef it up, xo'.[80] Another text to her said, 'Eaten for wallopers. Thew fucking deservef it though'. The appellant explained that, by that text, he meant that he was waiting for the police and 'I [namely the appellant] deserve it though'.[81] He sent a text at 10.32 pm to his ex-wife saying he had cut the deceased's throat.[82] He sent several other similar text messages to his ex-wife and ex-girlfriend over the next hour or so.[83] He said he did not know why he had sent the text messages to his ex‑wife, but that perhaps it was because 'she would do something'.[84]
11. The deceased went inside for a bit, while the appellant stayed outside. Then the deceased came outside and asked the appellant to play a Dido CD, which he did.[85] The CD was jumping, so the deceased took it inside to the kitchen sink and cleaned it. She then gave it back to the appellant who played it.[86]
12. While the CD played, the appellant stood near, and then sat on, a milk crate and the deceased sat on a chair next to the fire pit. The deceased was calm. They sat there for a while; the CD played through to the end and then went on repeat.[87]
13. The deceased went inside the house and came out with beer. The appellant and the deceased were both standing by the fire pit. The deceased came over to the appellant, gave him a hug, and was sobbing. That made the appellant sad and he told her that he loved her.[88] They hugged for a while. They said that they loved each other. The deceased asked why the appellant would do this to her (in relation to asking her to leave).[89]
14. The deceased threw her mobile phone in the fire. The appellant was not sure if this happened just before the hugging or sometime after. The deceased then reached into the fire, picked up the phone, and threw it out.[90]
15. After the hugging, the appellant went inside to get more drinks for them both. The deceased stayed outside. The appellant brought the drinks outside and they started talking again. The deceased said that she wanted the appellant to marry her.[91] The appellant again told the deceased that she needed to control her alcohol intake. It wasn't the drinking itself that the appellant had a problem with; the problem was the violence that went with the drinking.[92]
16. The deceased started yelling and screaming at the appellant. She said that he could not do this to her. She punched the appellant in the head. The appellant moved back. The deceased said some words; the appellant wasn't sure what she was saying. Then the deceased went inside, to the kitchen.[93]
17. The appellant was behind the deceased. She was saying something but the appellant couldn't hear her properly. The appellant wears a hearing aid.[94] When the appellant got to the kitchen, the deceased was already in the corner of the kitchen and she had the knife. The appellant was moving towards her. The deceased was holding the knife with the blade towards the appellant, thrusting the knife at him. At that stage, the appellant was just ahead of where the kitchen drawers were.[95]
18. The deceased turned around and was pointing the pointy end of the knife towards her own chest. The appellant said, 'what the fuck are you doing'. The deceased was saying something, but the appellant could not recall what.[96]
19. The appellant took a step towards the deceased.[97] She had the knife pointing towards the appellant, so the appellant moved in to get the knife from her.[98] The appellant used his hands to twist the deceased's wrist so that she would release the knife. He was twisting her wrists at just above stomach height. The appellant pushed the deceased up against 'the thing' and the appellant went backwards.[99]
20. The appellant had the knife at this point and was saying something like 'what the fuck's going on'. The deceased then lunged straight at the appellant. It was 'very very quick ... it was instant'.[100] After that, the appellant pushed the deceased back to the corner of the L-shaped kitchen bench.[101]
21. The appellant moved back a bit and then saw the knife in the deceased's chest. The appellant went over to the deceased, pulled the knife out, and went looking for the phone. He put the knife on the bench.[102]
22. The deceased was standing against the corner of the kitchen bench.[103] The appellant saw her head go back. He rushed to her and had her lean on him.[104] He put his hand on the wound. The appellant was speaking on the phone. He lay the deceased on the floor.[105]
23. The appellant said that he 'goes by whatever the recording [of the 000 call] says... because that was as things were happening'.[106]
24. The appellant was told by the 000 operator to place a towel on the deceased; he used his underwear.[107] The appellant performed CPR and Expired Air Resuscitation until the police arrived.[108]
25. The appellant was placed under arrest immediately by the first police officer at the scene.[109]
26. The appellant said that the deceased always had bruises and that she had a habit of picking at wounds.[110]
27. The deceased had a 'thousand-yard stare' while they were sitting by the fire pit.[111] He had never seen anything like when the deceased was jabbing the knife towards her own chest.[112]
28. The appellant said that he did not intentionally kill the deceased and did not intend to do her grievous bodily harm. His intention when he took the knife away from her in the kitchen was to protect her.[113]
29. His evidence in cross‑examination was to the following effect.
30. The appellant felt guilty when the deceased got the cut on her neck.[114]
31. The appellant accepted that the letter F is next to the D on his phone keyboard (in relation to questioning about the word 'pissef' in his text message).[115] The appellant denied that by the message 'thew fucking deservef it' in his text to his ex‑girlfriend he intended to type 'they fucking deserved it', referring to the deceased (whom he had not named in the preceding text to his ex‑girlfriend), that the deceased 'deserved it'. The appellant said that he meant that he deserved it.[116] The appellant said that he cannot spell properly when he has been drinking.[117]
32. The appellant said that he has no idea why he was waiting for the police to come when he cut the deceased's neck. He denied that the deceased was trying to call the police and that he had thrown her phone in the fire.[118] He said that he has no idea of his state of mind at that time, and that his concern was that he felt bad about the deceased having a neck wound from them struggling over the knife.[119] The appellant said that he does not know what he meant in his text messages; his interpretation of them is based on sitting down with them a few days before the trial and translating what he thinks he meant by them.[120]
33. When it was put to the appellant that he told the police he had retrieved his phone from his pocket to call 000, he adhered to what he said in his evidence‑in‑chief, which was that he retrieved his phone from the bench.[121] His explanation for why he told the police that he got it from his pocket was '[p]robably because it was in [his] pocket at some stage'.[122]
34. The appellant reiterated that whatever he said in the 000 call is correct. He said that, in an interview, when a person is distressed, like he was in his police interview, the person gets 'all muddled up'.[123]
35. The appellant agreed that sometimes during arguments when he and the deceased had been drinking he would retaliate, and he agreed that his PTSD 'doesn't help'.[124] Drinking would exacerbate his PTSD symptoms, such as aggression.[125] When drunk, he would swear and sometimes get angry with the deceased.[126] The appellant has never been violent in any other relationship.[127] He said that he had 'backhanded' and punched the deceased.[128] The more drunk the appellant became, the higher the chance that he would retaliate.[129] He would not hit the deceased often; it was something that he would usually avoid.[130]
36. The appellant considered that he was a 'battered husband'.[131] The appellant said that he 'copped it more' than the deceased did.[132] The appellant said that the deceased could dominate him physically, mentally, emotionally, and in 'every possible way'.[133] The appellant could not count how many times the deceased had stabbed him. The deceased was never charged with assaulting the appellant.[134]
37. The appellant was drunk, but not 'plastered', when he cut the deceased's neck while trying to get the knife from her.[135] By 2.00 am, both parties were 'very intoxicated'.[136]
38. While he agreed that in a text a few minutes earlier he had referred to the deceased as 'that fucking cunt', the appellant adhered to his evidence that his text message of 26 March 2014, in which he wrote 'I want to kill the cunt', meant that he wanted to murder a beer and did not refer to the deceased.[137]
39. The appellant agreed that the police got involved with him and the deceased a lot because they 'needed mediation with some things'.[138] Some of the police attendances were not about much at all.[139]
40. The appellant agreed that he had no difficulties physically dominating the deceased's male friend who was present at the dog collar incident.[140]
41. The appellant admitted that he had left the knife around when he and the deceased were getting drunk, even though he knew that the deceased had a fascination with knives and had stabbed the appellant more times than he could count when drunk. The appellant said that her behaviour had improved when they had gotten back together after their split. The appellant, at the time of trial, still could not understand the deceased's behaviour 'that night'. The appellant said that he did not think to move or hide the knife when it was sitting around on the table, even when the deceased punched him in the head that night, was 'plastered', and was cut on her neck. The appellant didn't think that 'anything else could happen'.[141]
42. The appellant could not explain how the knife cut the deceased's neck, penetrating three to four centimetres horizontally while they were struggling over it. The appellant did not cut her neck deliberately.[142]
43. The appellant said that his police interview was 'all muddled up as to certain things'.[143] The appellant acknowledged inconsistencies in his police interview, such as where exactly he cut his thumb and when exactly he was punched by the deceased.[144] The appellant said that what he said in his police interview was true, but that 'where it happened, when it occurred, exactly, is muddled'.[145]
44. The appellant said that his evidence about how he got the knife from the deceased was what he believed 'must have happened', but conceded that he had no idea how he actually got hold of the knife.[146] The appellant recalled how he removed the knife from the deceased's chest and held her with clarity because he saw that every single night since the event.[147]
45. The appellant denied that he had tried to reconstruct a version of events.[148]
46. The appellant said that he was holding the knife to his chest, slightly above the nipple line, when the deceased lunged at him. He could feel his heartbeat thumping, which is how he knew where he was holding the knife.[149]
47. Although in his 000 call the appellant said that the stabbing had occurred 5 minutes ago, that was incorrect; it had occurred much more recently than that.[150]
48. The appellant did not know whether he was pointing the knife outwards or downwards just before the deceased lunged at him.[151] The appellant agreed that it was not until giving evidence at trial that he mentioned pushing the deceased back into the corner of the kitchen after she lunged at him.[152] The appellant denied that he was trying to tailor his version of events to account for the blood spatter on the kitchen cupboard.[153]
49. The appellant denied cornering the deceased in the corner of the kitchen and stabbing her there.[154]
50. The appellant 'wouldn't know' whether his version of events - that is, holding a lethal weapon against his chest in circumstances where the deceased was trying to injure herself with it - was a very dangerous way to hold the knife. The appellant reiterated that he did not know whether he was holding the knife outwards or downwards.[155]
51. The appellant said that he was holding the knife defensively, not offensively.[156]
52. The appellant agreed that he answered honestly when he said to the 000 operator, in response to a question about where the attacker was, that 'it was me'.[157]
53. The appellant said that he used swear words every day to describe 'anything or anyone'.[158]
54. The appellant said that he could not always retaliate to the deceased's violence because she was a woman and, sometimes, for medical reasons from his previous injuries.[159] At the time of trial, the appellant still struggled with walking and using stairs, due to previous injuries.[160]
55. The appellant only got a chance to listen to his 000 call and his police interview when they were played at trial.[161]

1. On appeal, the appellant's complaints concerning the trial judge's summing up concern what is said to have been absent from the summing up. There is no complaint of error in what the judge told the jury. Consequently, only brief reference need be made to the summing up.
2. In identifying the elements of the charge of murder, the judge told the jury that one element was unlawfulness. The judge identified the issue as to unlawfulness as being whether the prosecution had proved beyond reasonable doubt that the act, as the jury found it to be, was a willed act.[162] The judge informed the jury that it was for them to identify what the relevant act was. In doing so, the judge identified the competing cases in that regard. The judge said the defence case was that the appellant's contribution to the deceased's death was the holding of the knife on which, or towards which, the deceased lunged, impaling herself upon it.[163]
3. The judge told the jury that if they had a reasonable doubt as to whether the deceased's death occurred in the manner contended by the State, the jury would acquit the appellant of murder.[164] The judge then summarised the matters relied on by each of the parties in their competing cases as to the mechanism by which the knife came to be in the deceased.[165]

1. The appellant advances five grounds of appeal:
   1. The appellant suffered a miscarriage of justice due to the learned trial judge's failure to leave the 'home invader' defence in section 244 of the Code to the jury.

1. The appellant suffered a miscarriage of justice due to the learned trial judge's failure to leave the defence of self-defence in section 248 of the Code to the jury.

1. The appellant suffered a miscarriage of justice by the learned prosecutor leading a large body of inadmissible DNA evidence from a police officer.

1. The prosecutor adduced evidence of numerous DNA results through a police forensic investigation officer;
2. the DNA evidence was expert evidence which could only be adduced from an appropriately qualified forensic scientist, rendering the evidence inadmissible;
3. the DNA evidence was also inadmissible hearsay as the police officer did not conduct the DNA testing procedure;
4. neither the learned trial judge nor defence counsel commented on the admissibility of the evidence;
5. the DNA evidence was adduced without any explanation, inter alia, as to what DNA is, what a DNA profile is (including a mixed profile) and how it might be deposited on an item; and
6. the reception by the jury of a large body of inadmissible and unexplained DNA evidence caused the appellant to suffer material prejudice.

1. The appellant suffered a miscarriage of justice due to the learned prosecutor's failure to adduce evidence of any of the DNA results obtained from the knife which inflicted the fatal wound, the scabbard, and the appellant's polo shirt.

1. A final DNA report was included in the prosecution brief;
2. the report indicated, inter alia, that the deceased's DNA was located on the handle of the knife which inflicted the fatal wound, and the scabbard of the knife;
3. this evidence supported the appellant's account of the deceased handling the knife prior to the appellant inflicting the fatal wound;
4. the learned prosecutor failed to adduce evidence of any of the DNA results concerning the knife or the knife scabbard;
5. the DNA report also contained results for the appellant's polo shirt, which supported his account, but were not led by the prosecutor;
6. the learned prosecutor had a duty to adduce all relevant evidence; and
7. the failure to adduce the DNA results from the knife, scabbard and polo shirt deprived the jury of critical evidence which supported the defence case.

1. The appellant suffered a miscarriage of justice due to the incompetence of his counsel.

1. The appellant instructed his counsel that, if the act of stabbing the deceased was a willed act, he acted instinctively in self-defence as a result of his years of military training;
2. there was clear evidence led at trial that the appellant had suffered numerous violent assaults from the deceased, including on the night of the offence and just prior to inflicting the fatal wound;
3. both the appellant's instructions, and the evidence led at trial, clearly raised self-defence and the 'home invader' defence;
4. the appellant's counsel failed to adduce evidence from the appellant directly relevant to the elements of self-defence, and expressly disavowed the defence when questioned by the learned trial judge;
5. the disavowal of self-defence is not consistent with a legitimate forensic decision;
6. the appellant's counsel failed to adduce evidence from the appellant directly relevant to the elements of the 'home invader' defence, and failed to request the learned trial judge leave the defence to the jury;
7. the appellant's counsel's failure to raise the 'home invader' defence is consistent with having overlooked the defence entirely;
8. the appellant's counsel failed to object to inadmissible DNA evidence being led from a police officer;
9. the appellant's counsel failed to request that the State lead evidence of the DNA results concerning the knife used to inflict the fatal wound; and
10. the appellant's counsel's incompetence caused the appellant to suffer numerous material irregularities which affected the outcome of the trial.

1. The appellant's grounds of appeal assert the availability of both the home invader defence, under s 244 of the Code and, self‑defence, under s 248 of the Code.
2. Section 244 of the Code provides that:

(1) It is lawful for a person (the occupant) who is in peaceable possession of a dwelling to use any force or do anything else that the occupant believes, on reasonable grounds, to be necessary -

(a) to prevent a home invader from wrongfully entering the dwelling or an associated place; or

(b) to cause a home invader who is wrongfully in the dwelling or on or in an associated place to leave the dwelling or place; or

(c) to make effectual defence against violence used or threatened in relation to a person by a home invader who is -

(i) attempting to wrongfully enter the dwelling or an associated place; or

(ii) wrongfully in the dwelling or on or in an associated place; or

(d) to prevent a home invader from committing, or make a home invader stop committing, an offence in the dwelling or on or in an associated place.

(1A) Despite subsection (1), it is not lawful for the occupant to use force that is intended, or that is likely, to cause death to a home invader unless the occupant believes, on reasonable grounds, that violence is being or is likely to be used or is threatened in relation to a person by a home invader.

(2) A person is a home invader for the purposes of subsection (1) if the occupant believes, on reasonable grounds, that the person -

(a) intends to commit an offence; or

(b) is committing or has committed an offence, in the dwelling or on or in an associated place.

(3) The authorisation conferred by subsection (1)(a), (b) or (d) extends to a person assisting the occupant or acting by the occupant's authority.

(4) If under subsection (1)(c) it is lawful for the occupant to use a degree of force, it is lawful for another person acting in good faith in aid of the occupant to use the same degree of force to defend the occupant.

(5) This section has effect even if the conduct it authorises would not otherwise be authorised under this Chapter.

(6) In this section -

associated place means -

(a) any place that is used exclusively in connection with, or for purposes ancillary to, the occupation of the dwelling; and

(b) if the dwelling is one of 2 or more dwellings in one building or group of buildings, a place that occupants of the dwellings use in common with one another;

offence means an offence in addition to any wrongful entry;

place means any land, building or structure, or a part of any land, building or structure.

1. Self-defence, under s 248 of the Code, provides that:

harmful act means an act that is an element of an offence under this Part other than Chapter XXXV.

(2) A harmful act done by a person is lawful if the act is done in self-defence under subsection (4).

(3) If -

(a) a person unlawfully kills another person in circumstances which, but for this section, would constitute murder; and

(b) the person's act that causes the other person's death would be an act done in self-defence under subsection (4) but for the fact that the act is not a reasonable response by the person in the circumstances as the person believes them to be,

the person is guilty of manslaughter and not murder.

(4) 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.

(5) A person's harmful act is not done in self-defence if it is done to defend the person or another person from a harmful act that is lawful.

(6) For the purposes of subsection (5), a harmful act is not lawful merely because the person doing it is not criminally responsible for it.

1. The appellant requires an extension of time within which to appeal against his conviction. His appeal was commenced more than six years out of time.
2. Where, as here, there has been lengthy delay, the court requires exceptional circumstances to be shown before granting an extension of time, unless it can be shown that there will be a miscarriage of justice if an extension is not granted. In that regard, a miscarriage of justice is not established simply by demonstrating that an appeal ground will succeed.[166]
3. The delay has not been adequately explained. Essentially, the delay arose because the appellant's then lawyers were unable to identify any meritorious grounds of appeal. Consequently, no extension of time should be granted unless this court is satisfied that there will be a miscarriage of justice if an extension is not granted. Consideration of whether that is so requires attention to the merits of the appellant's grounds of appeal, to which we now turn.

Ground 1: failure to leave 'home invader' defence to the jury Appellant's submissions

1. The appellant submits, correctly, that the question for a trial judge in determining whether a defence should be left to the jury is whether there is evidence which, taken at its highest in favour of the accused, could lead a jury to have a reasonable doubt that all elements, or an element, as the case may require, have been negatived.[167]
2. The appellant identifies the elements of s 244, in its potential application to the present case, as follows:

(1) The appellant was a person in peaceable possession of a dwelling (and so the 'occupant');

(2) the deceased was a home invader; namely a person the appellant believed, on reasonable grounds, intended to commit an offence or was committing or had committed an offence in the dwelling;

(3) the appellant believed, on reasonable grounds, that it was necessary to use force to the home invader to prevent her from committing, or to make her stop committing, an offence in the dwelling or an associated place; and

(4) accepting that the force used was likely to cause death to the home invader, the appellant must have believed on reasonable grounds that violence was being, or was likely to be, used or threatened in relation to a person by the deceased.

1. The appellant makes the following submissions as to why each of these elements was capable of arising on the evidence at trial.
2. As the owner of the house not committing any breach of the peace himself, the appellant was clearly in 'peaceable possession' of a dwelling.[168]
3. The deceased was a 'home invader' because the appellant gave evidence that she was waving a knife around at him, punched him to the head, and thrust a knife at him, and therefore there was evidence that the appellant had committed at least the offence of common assault in the dwelling or an associated place.[169]
4. The appellant submits that, 'regrettably', he was not asked questions relevant to his belief at the time that he held the knife. Nevertheless, the appellant submits, there was a 'clear inference that' the appellant held the necessary belief - namely that it was necessary to use force to the deceased to prevent her from committing, or to make her stop committing, an offence in the dwelling - in light of the following evidence given by the appellant:[170]

(1) The deceased was 'scary' when under the influence of alcohol;[171]

(2) the deceased gave the appellant a 'thousand mile stare', which 'unnerved him a bit' and he thought 'what fucken next';[172]

(3) the deceased had previously got angry and hit the appellant when he made comments about her drinking; the appellant had told the deceased to stop drinking just prior to the incidents the subject of the charge;[173]

(4) the deceased threatened the appellant with the knife by waving it around at him;[174]

(5) the appellant felt 'very uneasy' when the deceased first came out of the house with the knife;[175]

(6) the deceased called the appellant a 'cunt' and punched him in the head saying 'you can't do this to me', before collecting the knife a second time;[176]

(7) the deceased waved around and thrust the blade of the knife (a large, military-style dagger) towards the appellant and then back at herself;[177]

(8) the deceased did this with the knife several times;[178]

(9) the appellant had never seen behaviour like this before;[179]

(10) the appellant was so concerned that he wrestled the knife off the deceased;[180]

(11) the deceased was 'really strong' and it was difficult to get the knife off her;[181]

(12) the appellant received a cut to his thumb;[182]

(13) the appellant held the knife at chest height outwards in a defensive manner;[183]

(14) the appellant said 'what's the fuck going on? What's the fuck going on?' and then 'bang, that was it';[184]

(15) the deceased lunged straight at the appellant very quickly;[185]

(16) the appellant saw the knife in the deceased's chest;[186]

(17) the appellant 'didn't expect it to happen';[187]

(18) 'it all happened so quickly';[188]

(19) the appellant 'didn't do anything deliberately';[189]

(20) it 'was an accident' and the appellant does not know how the deceased was stabbed;[190]

(21) the deceased came towards him and 'it just happened';[191]

(22) the appellant was not thinking rationally and does not understand what happened;[192]

(23) the appellant was a 'battered husband';[193]

(24) the deceased could dominate the appellant physically and 'in every possible way';[194]

(25) the deceased had stabbed the appellant more times than he could count.[195]

1. This evidence, considered in the context of other evidence, including that the appellant was protected from the deceased by a VRO at the time of the alleged offending, enabled the jury to infer that the appellant was fearful of violence from the deceased.[196] Evidence of the appellant's military training was relevant to assessing how he might behave to a violent person rushing at him.[197]
2. The appellant submits that, from all of this evidence, it was open to the jury to infer that, when the deceased rushed at the appellant, he instinctively stabbed her because he believed that she would either assault him further, or retrieve the knife from him and then commit further offences.[198] This is so, notwithstanding that, at that point, the appellant was armed while the deceased was not. The jury could infer that, in circumstances where the appellant had twice taken the knife from the deceased, her conduct in again lunging towards him could lead to the appellant's belief that she intended to obtain it and use it violently, or that she threatened to do so.[199]
3. The appellant submits that the fact that he was not able to explain how the knife went into the deceased is explained by the chaotic situation. The appellant relies on observations by Callinan J in Ugle v The Queen[200] that, having regard to the flurry of events at the time of the penetration of the knife, a person might be excused for being unable to say with certitude whether a particular movement was instinctively self‑protective or otherwise unaccompanied by a will to inflict harm.[201]
4. Finally, as to the fourth element, the appellant submits that it was open to the jury to infer that the appellant believed that the deceased, when she rushed at him, had decided that she was going to harm him and would either assault the appellant further or take the knife from him and use it against him, as she had previously threatened to do.[202]
5. The appellant submits that, even though he did not give direct evidence of the belief required for s 244 of the Code, it was open to the jury to infer that the appellant held the necessary belief.[203]
6. The appellant submits that the unwilled act defence and the home invader defence are not mutually exclusive, referring to Macaree v The State of Western Australia[204] and to Hawke v The State of Western Australia.[205]
7. The appellant submits that, because the court overlooked the home invader defence, the appellant suffered the loss of a real chance of acquittal on the basis of s 244.[206]
8. Of particular importance to grounds 1 and 2 is what the appellant said in his 000 call, the police interview and in his oral evidence as to what occurred, and as to his state of mind, immediately before, when, and immediately after the knife penetrated the deceased. We detail that evidence below. As we will explain, in light of that evidence, in our view, the evidence, taken at its highest in favour of the appellant, was incapable of supporting any reasonable inference that the appellant deliberately stabbed the deceased because he believed that doing so was necessary to achieve any of the purposes in s 244(1) of the Code.

The appellant's version at trial as to the circumstances and his state of mind at and around the time the knife penetrated the deceased

1. Near the beginning of the appellant's 000 call, the following exchange occurs between the appellant and the operator:

Operator: Okay. Tell me exactly what's happened.

Appellant Um, stabbed in the chest.

Operator: How did that happen, mate?

Appellant: Uh, argument.

1. Later in the conversation in which the operator is instructing the appellant in the administration of first aid, the following exchange occurs:

Operator: [indistinct] when did this happen?

Appellant: Uh, five minutes ago.

Operator: Okay. Is, is the attacker still nearby?

Appellant: Oh, it was me, mate. That's why I'm ringing.

Operator: Okay.

Appellant: It was a domestic argument.

1. Early in the interview, the appellant outlined what had occurred after he had got the knife from the deceased as follows:[207]

THORNS: And that's when she got me thumb and me hand. Um, it was just weird but anyway so I, I actually got, I managed to get it off her and I had it in my hand and then she just lunged at me.

SCON DYER: Okay.

THORNS: Just, just lunged and that's when it was in her and I didn't even know sort of thing. It took me, um, I, I don't know, to realise that she was stuck. And I pulled it out and, um, of course she, she was, um, she, she went back like this and, and, and I grabbed it and, and I got me phone out of me pocket and straight away, um, 'cause I still had her up, straight away dialled the, um, emergency number. (emphasis added)

1. Thus, from the outset of the interview the appellant said that he did not know that the knife had stabbed the deceased until after it had happened.
2. In the course of answering questions about the knife, the appellant said that when the deceased lunged at him it surprised 'the hell out of [him]'.[208]
3. Later in the interview, the interviewing officer took the appellant through events surrounding the knife going into the deceased in considerable detail. The appellant said that after he got the knife from the deceased, he stepped back, saying to the deceased, '[w]hat the fucks going on?... What are you doing?' He said that then, '[s]he's come to me. She's come to me'.[209] The appellant said that he was not sure how he was holding the knife. He then added, '[a]nd then the next, she just, I didn't even realise that she was, um, had this until after it happened'.[210]
4. The interviewing officer asked further questions concerning where the appellant was holding the knife. The appellant indicated up around his chest height. The appellant said that he was not sure where he had it, but could remember feeling it 'here', indicating his chest.[211]
5. The following exchange then occurred:[212]

SCON HELLER: So you said she lunged at you.

THORNS: She just, she just came.

SCON HELLER: Yep.

THORNS: Just not like, I don't know, I don't know, she just came.

SCON HELLER: Yep.

THORNS: I, I don't think she expected to happen what happened and I didn't expect what to happen, happened. I don't know what, but it, it's not like I did anything, I didn't do anything deliberately, I didn't.

SCON HELLER: So the knife blade has stabbed into [the deceased].

THORNS: Yes.

SCON HELLER: Yes. What's happened immediately after that?

THORNS: Um, I've realised she's been stabbed. (emphasis added)

1. In this passage, the interviewer did not direct the questioning in any way. Had the appellant deliberately stabbed the knife into the deceased, he might have been expected to say so in the course of this narrative of events. The same is true if the appellant had stabbed her because he feared that she would take the knife from him and then hurt him.
2. Shortly after that passage, in again describing what occurred after he had taken the knife from the deceased, the appellant said, '[a]nd she just, she just, just came forward like that, just came forward'.[213]
3. Later in the interview, in the context of being questioned about whether he had taken steps to clean up blood or other matters, the appellant said, '[i]t was an accident and it's not deliberate and I didn't want it to happen to her. I love her'.[214]
4. When questioned about what he had said on the 000 call, the appellant reiterated, '[i]t is an accident'. He said, 'I didn't fucking deliberately stab her. [I] didn't'.[215] He said he was 'not trying to hurt her'.[216]
5. Near the end of the interview, the appellant was asked if he deliberately stabbed the deceased. He said that he did not. He said, '[i]t was a [indistinct]. She came towards me. It just happened'.[217] When asked at the end of the interview if there was anything more he wanted to say, the appellant said, '[j]ust none, none of this was deliberate, none of it'.[218]

1. A broader summary of the appellant's evidence at trial is given at [28] - [98] above. The following account focuses on the appellant's evidence relating to events at the time of the stabbing.
2. At trial, in his evidence‑in‑chief, the appellant was asked what he did once he had got the knife from the deceased. His response was:[219]

Well, I went back there and I was saying something like, 'What's the fuck going on? What's the fuck going on?' And she just, pfft, bang, that was it.

...

You say you've got the knife and you were in the position which you indicated, and you did something like 'she was pfft'. What was that?

‑‑‑She lunged straight at me.

She lunged at you?---Straight at me.

With what speed did she lunge at you?---Very, very quick.

It was - it was instant.

Right?---Instant.

And what happened next? Where was Ms Booth after she lunged at you?‑‑‑I pushed her back to the - in the corner there.

Can you indicate on the photograph where you pushed Ms Booth back?‑‑‑In here.

The witness is indicating the corner of the L-shaped kitchen bench.

SIMMONDS J: Yes. And is that under the windows?

CHONG, MS: Yes.

SIMMONDS J: Yes.

CHONG, MS: And after you pushed her back into the corner, what then happened?---Well, I've gone back a little bit, and then I've seen the knife.

And where was the knife?---In her. (emphasis added)

The open‑ended, non‑leading questions asked by counsel in this passage should be noticed. We will return to this in considering ground 5.

1. When asked what his intent was when he took the knife away from the deceased, the appellant said that his intention was to protect the deceased.[220]
2. In cross-examination, the appellant acknowledged that his evidence as to how he got the knife from the deceased was a reconstruction.[221]
3. The appellant was cross-examined extensively about his conduct immediately after he knew that the knife was in the deceased. His evidence‑in‑chief was that he pushed the deceased back. The prosecutor put to the appellant that he had not said that in the police interview and that this was now part of the appellant's version in order to account for the blood spatter evidence.[222]
4. The appellant was cross-examined as to how and where he was holding the knife at the time that the deceased came to him or lunged at him.[223]
5. The prosecutor then took the appellant through the sequence of events in the kitchen as the appellant had described them to police.[224]
6. The appellant said, by way of confirmation of what he had told the police, that when he had got the knife from the deceased, he stepped back away from her, holding the knife up around his chest. He said that he was not sure whether the knife was pointing outwards or downwards.[225] The appellant confirmed what he had said at page 132 of the VROI, as set out at [130] above. He confirmed that the deceased lunged at him, saying that was 'exactly wha[226]appened'.226 When asked whether immediately after that happened he realised that the deceased had been stabbed, he said, '[y]es, once I pushe[227]er back'.227 A little later, he said that, '[i]t's when I stood back from her in the corner that I saw the knife in her, and that's when I went and took it out, and it happened - it was all very, [228]y quick'.228
7. The cross‑examination on this topic continued after the luncheon adjournment.
8. The prosecutor referred the appellant to part of the passage of the VROI set out in [130] above, namely where the interviewer said, '[s]o the knife has stabbed into [the deceased]', with which the appellant agreed and, when asked what happened immediately after that, he told the police, 'I've realised she's been stabbed'. When that passage was put to him, the appellant said, '[t]hat's right, I rea[229]ed, yes'.229

1. Both the appellant's interview and his evidence at trial were extensive and detailed. Contrary to his counsel's assertion at the appeal hearing that his evidence was 'a shambles',[230] what he said was, in its essence and in the following respects, consistent. The substance of the appellant's evidence and interview was that:
   1. The deceased lunged at him while he was holding the knife.
   2. After he stood back he realised, for the first time, that she had been stabbed.
   3. He did not deliberately stab the deceased. He did not know of, or intend, the stabbing of the knife into the deceased and did not make any bodily movement in order to bring it about.

1. Although provisions such as s 244 of the Code are often referred to as giving rise to 'defences', it is established that, if there is some evidence capable of raising the defence, the legal or persuasive burden is on the State to exclude the application of the provisions. The appellant bore the evidentiary onus of adducing, or pointing to prosecution evidence, on which a jury acting reasonably might fail to be satisfied beyond reasonable doubt that he was not acting with one of the beliefs referred to in s 244(1)(a) - (d) of the Code.[231] As the appellant submits, whether the defence of home invader should have been left to the jury depends upon whether there was evidence at trial which, taken at its highest in favour of the appellant, could fail to satisfy a jury beyond reasonable doubt that the appellant did not hold the beliefs necessary to make the home invader defence potentially applicable.[232]

1. The parties' submissions raise a question of construction of s 244, specifically as to the ambit of the term 'home invader'. The appellant relies on a literal reading of the terms of s 244, by which the question of whether a person is a home invader is determined by reference only to the occupant's belief, on reasonable grounds, that the person intends to commit an offence or is committing or has committed an offence in a dwelling (or associated place). The respondent submits that, given the legislative history of s 244 and its evident purpose, a person who is in the place with the occupant's consent, or at least a person who is also an occupant of the place, cannot be a home invader. A possible third construction raised in argument was that the definition of 'home invader' in s 244(2) is an inclusive rather than an exclusive definition, and that to be a 'home invader' a person must also be in the dwelling or an associated place without the consent of the occupier. That would give the phrase 'home invader' work to do in accordance with the ordinary meaning of those words.
2. It is not necessary to determine this question of construction of s 244 of the Code because, even if the question were determined favourably to the appellant, ground 1 fails because the evidence was not capable of raising an issue under s 244 of the Code.

1. For the reasons that follow, the evidence at trial could not have led the jury to have a reasonable doubt that at least one of the elements of s 244 had been excluded by the prosecution.
2. An essential (but not sufficient) condition for the application of the home invader defence in the present case was that the appellant subjectively believed stabbing the deceased in the chest to be necessary for one or more of the purposes identified in s 244(1)(a) - (d) of the Code. To satisfy the evidential onus, the appellant had to adduce evidence or point to prosecution evidence on which a jury acting reasonably might fail to be satisfied beyond reasonable doubt that the appellant did not hold that subjective belief when the knife entered the deceased's chest.
3. On appeal, in submitting that his evidential onus was satisfied, the appellant relies entirely on his own evidence, as can be seen in [114] above.
4. The appellant's evidence does not satisfy that evidentiary onus. The effect of the appellant's evidence was that he did not have any belief that stabbing the deceased was necessary for any purpose, as he did not stab her deliberately. In our opinion, having regard to the appellant's evidence, including what he said in his police interview, as outlined in [125] ‑ [146] above, as to what occurred and as to his state of mind immediately before, when, and immediately after the knife penetrated the deceased, the appellant's evidence at trial, taken at its highest in favour of the appellant, was incapable of supporting an inference that the appellant deliberately stabbed the deceased because he believed that doing so was necessary to achieve any of the purposes in s 244(1) of the Code.
5. The evidence relied on by the appellant, set out at [114] above, falls well short of sustaining the inference now invited by the appellant.
6. The earlier history of violence on the part of the deceased was not capable of overcoming the absence of any evidence from the appellant of any concern to defend himself at the relevant time. Nor could that earlier history of violence overcome the appellant's repeated denials that he deliberately stabbed the deceased.
7. In oral argument, the appellant highlighted the appellant's evidence that he held the knife in a defensive manner. That evidence does not assist the appellant. It was given in the context of, and in response to, the prosecutor's suggestion in cross‑examination that, even on his own account, the appellant's conduct in relation to the knife was dangerous. It was not said in the context of any suggestion by the appellant that defending himself was the reason that he stabbed the deceased with the knife.
8. In oral argument, the appellant also pointed to the fact that in his 000 call the appellant said that he had stabbed the deceased, which suggests deliberateness.[233] Nothing in the 000 call assists the appellant in demonstrating an evidentiary foundation for an inference that he may have held the relevant belief. Far from suggesting that he was defending himself, during the call the appellant said, in substance, that he stabbed the deceased in a domestic argument.
9. As Mazza JA observed in Hawke:[234]

The evidential onus cast upon the appellant does not present a high bar. The factual analysis must have regard to the evidence as a whole. But in undertaking that analysis, a judge must guard against speculation and the assumption of facts in favour of an accused where there are gaps in the evidence.

1. The appellant relies upon a series of speculative steps, many of which involve rejecting the substance of the appellant's evidence. For example, the appellant submits that the jury could infer that, in circumstances where the appellant had twice taken the knife from the deceased, her conduct in again lunging towards him could lead to the appellant's belief that she intended to obtain it and use it violently or threaten to do so.[235] Not only did the appellant give no evidence of holding such belief, the existence of such a belief would, in itself, be insufficient for the purpose of s 244. There would also need to be evidence that, because of that belief, the appellant deliberately stabbed the deceased. There was no such evidence; to the contrary, the appellant repeatedly said that he did not stab the deceased deliberately. Further, there would need to be a basis to infer that the appellant held the belief that doing so was necessary to prevent the deceased from committing, or to make her stop committing, an offence.
2. Further, the appellant submits that the fact that he was not able to explain how the knife went into the deceased was explained by 'the chaotic situation'.[236] That does not reflect the appellant's version of events, as recounted in his police interview and in his evidence at trial. The appellant was able to explain, and did explain, how the knife went into the deceased. He said that the knife penetrated the deceased's chest because she lunged at him while he held the knife against his chest, without him doing anything to cause this to occur.
3. There is no doubt that a jury is entitled to accept part, but not all, of a witness's version of events and to work out for themselves a view of the case which does not exactly represent what either party has said. However, the jury are not required to ignore express denials, or consider one part of the accused's evidence in isolation from other parts, in determining what inferences can reasonably be drawn from an accused's evidence, taken at its highest in favour of the accused.
4. To satisfy the evidentiary onus the appellant must give or point to evidence which can form a basis for the jury failing to be satisfied beyond reasonable doubt that the appellant did not subjectively believe stabbing the deceased in the chest to be necessary for one or more of the purposes identified in s 244(1)(a) - (d) of the Code. Put another way, the evidence must be capable of giving rise to a reasonable possibility that the appellant may have (subjectively) believed stabbing the deceased in the chest to be necessary for one or more of the purposes identified in s 244(1)(a) - (d) of the Code. The appellant's evidence at trial, like his account to police, was only of a stabbing which was not deliberate. There was no evidence suggesting the appellant might have believed stabbing the deceased in the chest was necessary for any purpose. Neither his evidence at trial nor his account to police could form a rational basis for the jury to have a reasonable doubt about whether the appellant may have subjectively believed stabbing the deceased in the chest to be necessary for one or more of the purposes identified in s 244(1)(a) - (d) of the Code.
5. An essential first step of any consideration by the jury of s 244 would necessarily have been their rejection of the appellant's account, given in both his interview and his evidence at trial, to the effect summarised in [146] above. Once the jury rejected the appellant's evidence in that regard, there was no other evidence at trial capable of suggesting a reasonable possibility that the appellant might have subjectively believed stabbing the deceased in the chest to be necessary for one or more of the purposes identified in s 244(1)(a) - (d) of the Code. Any conclusion that the appellant held that belief and acted on it in stabbing the deceased would have been nothing more than speculation.
6. The evidence did not sufficiently raise the home invader defence as to require that defence to be left to the jury.
7. The cases on which the appellant relies do not assist him. Whether the defences of unwilled act and home invader are, as the appellant terms it, 'mutually exclusive' depends upon the circumstances of the particular case and the evidence given at trial.
8. In Ugle, the appellant's principal argument at trial was self‑defence. In that case, the appellant said that he had been struck by the deceased on the head with a cricket bat, causing him to lose balance. As the deceased went to hit him again, he put his hand up to push the deceased off.[237] Gummow and Hayne JJ observed that, in the circumstances of that case, that evidence was open to at least three constructions, namely:[238]

First, it was open to the jury to conclude that, to fend off a blow by the deceased, the appellant had raised the arm and the hand in which he was carrying the knife and had pushed or hit the deceased, but that the prosecution had not established beyond reasonable doubt that the appellant had consciously used the knife to attack or wound the deceased. Secondly, it was open to the jury to conclude that, despite what the appellant said, the prosecution had not established beyond reasonable doubt that the appellant had not acted in self‑defence. Thirdly, it was open to the jury to conclude that the prosecution had established that the appellant had deliberately attacked the deceased with the knife. In that last event the question would then have been whether the deceased was proved to have done so intending to kill (and thus was guilty of wilful murder) or had done so intending only to do grievous bodily harm (and thus was not guilty of wilful murder but guilty of murder).

1. The observations by Callinan J relied on by the appellant - see [117] above - must be understood in the very different evidentiary landscape of the Ugle case.
2. The decision in Hawke must be similarly understood in light of the evidence given, and the manner in which the case was contested, at trial. Buss P noted in that case that aspects of the appellant's evidence in cross‑examination were relevantly inconsistent with other evidence he had given and statements he had made in his VROI.[239] His Honour gave a detailed summary of the relevant substance of the appellant's evidence at trial that, together, was sufficient to discharge the evidential onus for an unwilled act.[240] In concluding that the evidence of the appellant, together with the evidence of a doctor, was sufficient to discharge the evidential burden in relation to the defence of unwilled act, Buss P observed that it was notable that the trial judge, prosecutor and defence counsel all thought that either the defence of unwilled act or the defence of accident should be left to the jury.[241] Corboy J also considered this to be significant.[242]
3. Hawke was a finely‑balanced case, reflected in Corboy J's statement that he reached the conclusion with some hesitation[243] and the fact that Mazza JA was in dissent.
4. In Macaree, this court did not need to, and did not, say anything as to the home invader defence, which the jury had evidently rejected. Consequently, the case is of no assistance.
5. For the reasons already given, there was no evidentiary basis for the home invader defence. The appellant has not suffered a miscarriage of justice from the trial judge's failure to leave that defence to the jury. Ground 1 is without merit.

1. The appellant submits that the evidence as a whole raised the question of self‑defence. He points to the same evidence as he relied on for the home invader defence. The appellant submits that there was evidence that the appellant feared a harmful act from the deceased, namely either (i) an imminent harmful act in the form of being assaulted as the deceased rushed at him or (ii) a harmful act that was not imminent, namely the deceased taking the knife from him and attacking him with it. The appellant submits that the inference could be drawn that he used force against the deceased to defend himself from the deceased's harmful act.[244]

1. This ground may be dealt with briefly. In short, it fails for reasons corresponding to the reasons that ground 1 fails. The first of the four elements of self‑defence under s 248(4) of the Code is the accused's subjective belief that the harmful act done by the accused is necessary to defend the accused (or another person) from a harmful act, including a harmful act that is not imminent.
2. The reasons given in relation to ground 1 have equal application in the present context. For those reasons, the evidence at trial, on the version most favourable to the appellant, was incapable of giving rise to a reasonable possibility that the appellant may have believed that it was necessary for him to stab the deceased in the chest in order to defend himself against a harmful act. Thus, expressed in terms reflecting the onus of proof, the evidence did not provide any basis for the jury to fail to be satisfied, beyond reasonable doubt, that the appellant did not believe that it was necessary for him to stab the deceased in the chest in order to defend himself against a harmful act.
3. That is sufficient to dispose of ground 2. Had the evidentiary threshold been met, there would, in any event, have been a very real question as to whether the appellant's harmful act in stabbing the deceased in the chest could, by any reasonable possibility, have been a reasonable response to the circumstances as the appellant believed them to be. We will return to that point in the context of ground 5.
4. For these reasons, ground 2 fails.

Ground 3: inadmissible DNA evidence led through an unqualified police officer

1. In order to put this ground of appeal into context, it is convenient to begin by outlining the evidence given by the relevant police officer, a forensic investigation officer, Lorraine Welch.

1. Officer Welch was a forensic investigation officer with the police.[245] She was stationed at Forensic Field Operations Crime Scene Investigation. At the time of trial, Officer Welch had been a police officer for almost nine years.[246]
2. On 3 April 2014, Officer Welch attended the property where the deceased had died.[247] Officer Welch was allocated the role of exhibits officer at the scene, which means that she was responsible for collecting exhibits, packaging them, and transporting them from the scene.[248]
3. Officer Welch described a series of photographs of the crime scene.[249]
4. Officer Welch was referred to the forensic exhibit matrix for this matter. She explained that this document recorded all exhibits collected, their movement, and the results of any examinations of exhibits.[250] By reference to that document, Officer Welch said that blood found on the rear patio pavers, the rear sliding flyscreen door, the left foot of the deceased, and the floor in front of the ensuite toilet had the DNA profile of the deceased.[251]
5. Officer Welch described another set of photographs from the crime scene.[252] Officer Welch confirmed, again by reference to the forensic exhibits matrix, that a stain found on a tissue located near the kitchen sink revealed the DNA profile of the deceased, with the possible presence of a second contributor at levels too low for analysis.[253]
6. Officer Welch identified the knife located on the kitchen bench and a scabbard located on the rear patio table.[254]
7. Officer Welch confirmed that the exhibits matrix for a blood swab of a spatter stain on the kitchen cabinet door stated that the blood swab revealed the DNA profile of the deceased and that a blood swab of a transfer stain on the dishwasher door revealed the DNA profile of the deceased.[255]
8. Officer Welch was then asked about evidence that she was not personally responsible for collecting. This included a pillowcase from the main bedroom, which, the forensic exhibits matrix recorded, had the DNA profile of the deceased and the possible presence of a second contributor at a level too low for interpretation;[256] and a fitted bed sheet from the bed in the main bedroom, which revealed the DNA profile of the deceased.[257] Blood was found on those items.[258]
9. In cross‑examination, Officer Welch said that she was not present during the examination of the pillowcase or the fitted bed sheet. Officer Welch was not able to say when the blood was deposited on those items.[259]
10. Officer Welch recalled that the clothing worn by the deceased was made of thin material.[260] Officer Welch 'could not say' the thickness of all four layers of clothing when worn on top of each other.[261]

1. The appellant submits that the results of DNA analysis are matters for expert opinion evidence, requiring an appropriately qualified expert witness. He submits that Officer Welch was not appropriately qualified, was not involved in the forensic testing, and gave evidence that was entirely hearsay in character and consequently inadmissible.[262]
2. The appellant acknowledges that there was no objection to this evidence at trial, and that consequently the appellant must show that its admission constituted a miscarriage of justice. In other words, he submits, the appellant must demonstrate that the inadmissible evidence occasioned material prejudice to him.[263]
3. The appellant submits that the receipt of the inadmissible DNA results occasioned material prejudice to him for the following reasons:
   1. The jury could not be expected to know, absent expert evidence on the topic, what DNA is and what its significance is. There was a risk that the jury would have placed too much emphasis on the DNA being on various items because, for example, the jury may have assumed that the presence of DNA necessarily meant the presence of blood.[264]
   2. The jury were not told what a DNA profile is or what a mixed or single person profile is and therefore was left to speculate, without explanation, about important matters such as why the deceased's DNA was present on items while the appellant's DNA was not.[265]
   3. The jury were not told how DNA can be placed on items and whether it is possible to determine when this occurred. This would have been relevant to determining whether the deceased's DNA and blood, which was found throughout the house, was placed on the items during the charged offence or during a previous incident.[266]
   4. Had admissible DNA evidence been led, the jury might have had a better understanding about whether the evidence confirmed the police's suggestion that the appellant cleaned up blood in the ensuite basin.[267]
   5. Expert forensic evidence could have contradicted the prosecutor's submission in closing that the lack of blood on the kitchen bench was inconsistent with the deceased laying back against it.[268]
   6. Various DNA results simply were not put to the jury and certain complications, such as the presence of a possible second contributor, were glossed over.[269]
   7. Because the trial judge did not refer to the DNA evidence in his Honour's expert evidence direction, the jury were not made aware that the DNA evidence was expert opinion evidence and so did not know how to deal with it when deliberating.[270]
4. The appellant submits that it cannot be known to what extent the inadmissible and unexplained DNA results influenced the jury in coming to their verdict.[271]

1. Where an appeal complains of the admission of evidence to which no objection was taken at trial, the appeal can be allowed only if the appellant establishes that the admission of the evidence gave rise to a miscarriage of justice.[272]
2. For the reasons that follow, we are not persuaded that the receipt of the evidence given by Officer Welch gave rise to a miscarriage of justice.
3. The prosecution brief included a DNA report by a forensic scientist, Nadia Mahomed.[273]
4. In the course of the trial, as the prosecution case was drawing to a close, the prosecutor said, in the absence of the jury, that:[274]

The very last witness, the forensic biologist, Nadia Mahomed, is unlikely to be called. The DNA is really not in issue. It will be led through police in a circumscribed fashion.

The appellant's counsel did not respond to this outline of the State's position, which reflected agreement reached between counsel in an earlier email exchange.[275]

1. It is thus readily apparent from the record of the trial that the appellant's trial counsel concluded that the DNA results were not contentious, such that it was appropriate to consent to the evidence of the DNA results being given by the forensic officer.
2. Counsel for a party at trial has a broad discretion as to the manner in which the case is to be run, including what issues to contest, what evidence to lead or to seek to have excluded and what lines of argument to run. It is a fundamental feature of our system of criminal justice that, with only limited exceptions, a party is bound by the manner in which counsel conducts the party's case at trial.[276]
3. On his own account of events, the appellant accepted that there had been an incident on the patio, some hours before the death, in which the deceased had suffered a cut to her neck and that the appellant had applied two bandages to the deceased's injury. Also on the appellant's account, the death of the deceased had occurred in the kitchen and was caused by the knife which he was holding at the time penetrating the deceased's chest. Thus, the DNA evidence did not substantially undermine the appellant's account of events. Given the substantial consistency of the DNA results with the appellant's account of events, it was well open to the appellant's trial counsel to take the view that the DNA test results were uncontentious and could be adduced in the form ultimately adopted.
4. Many of the appellant's submissions summarised at [190] above assume that the jury would have engaged in speculation. In circumstances where the trial judge gave the jury a conventional direction that they should not speculate, there is no reason to suppose that they did so.
5. In oral submissions, the appellant explained the concern underlying this ground; namely that the jury may have thought that the absence of the appellant's DNA on certain items was not consistent with his account and then relied on that in rejecting his account of events.[277] There is no merit in this submission. There was no evidence at trial that any conclusion could be drawn from the absence of DNA. Consequently, to reason in the manner identified by the appellant would be to engage in speculation. Moreover, the prosecutor made no submission that the absence of DNA - or any other aspect of the DNA evidence - undermined the appellant's account.[278]
6. Contrary to the appellant's submission, there is no blanket requirement for a detailed explanation of the science and terminology underpinning DNA evidence in every case. What is appropriate and necessary will depend upon the issues in the case and the significance of the DNA evidence for resolution of those issues.
7. In our view, the appellant has fallen well short of demonstrating that permitting the forensic officer to give the evidence of the DNA results gave rise to a perceptible risk that the jury misused the DNA evidence in any material way. The appellant has not demonstrated a miscarriage of justice. For these reasons, ground 3 fails.

Ground 4: the prosecution's failure to adduce the DNA results for the knife, scabbard and polo shirt Appellant's submissions

1. Both the report of Nadia Mahomed and the forensic exhibits list included DNA results for the knife handle, the knife scabbard and the appellant's grey polo shirt.
2. Ground 4 complains that the prosecution failed to adduce evidence of these results.[279]
3. The appellant submits that these DNA results were important because they supported the appellant's account of the deceased handling the knife, and removing it from the sheath, prior to the infliction of the fatal wound in circumstances where the prosecutor put to the appellant that his account of wrestling the knife from the deceased was untrue. Moreover, the appellant submits, the prosecutor submitted in closing address that the appellant's account of twice disarming the deceased was implausible and a fabrication. The appellant submits that the DNA results from the knife and the scabbard were important in rebutting these submissions and in supporting the appellant's account generally.[280]
4. The appellant further submits that the prosecutor had a duty to adduce all 'available, cogent and admissible' evidence, relying on what was said in Nguyen v The Queen.[281] In the absence of the DNA results the subject of this ground, the appellant submits that it was 'easy' for the jury to dismiss parts of the appellant's account. The appellant submits that the court cannot know what effect the absence of these results, which the appellant characterises as 'critical', had on the jury's verdict.[282]

1. In our opinion, for the reasons that follow, there is no merit in ground 4.
2. In our view, the DNA results relied on by the appellant in support of ground 4 do not have the central significance attributed to them in the appellant's submissions.
3. The presence of the deceased's DNA on the knife and the scabbard would not have undermined the central foundations of the prosecution submission that the appellant's account of twice disarming the deceased was implausible and a fabrication. Without attempting to be comprehensive, some of the matters relied on by the prosecution in this regard were:

(1) The nature, location and orientation of the two stab wounds suffered by the deceased in the course of the earlier incident. The deceased suffered a stab wound to the front of her neck that tracked from front to back and a second stab wound to the side of her neck that was 28 mm in length, and penetrated through muscle to a depth of 3 ‑ 4 cm.[283] The prosecutor submitted that the nature of the cuts to the deceased's neck was consistent with a stabbing, rather than a cut occurring inadvertently in the course of a struggle over the knife.[284]

(2) The text messages sent by the appellant after the deceased's neck was cut stated that the appellant had 'cut the [deceased's] throat', that she had deserved it, and that the appellant was waiting for the police. The prosecutor submitted that the appellant's attempts to explain these messages consistently with the deceased's neck having been cut inadvertently lacked any credibility.[285]

(3) The prosecution submitted that it would have been illogical for the appellant to leave the knife lying around in circumstances where the deceased was drinking and becoming violent, given the appellant's evidence that she had a fascination with knives and had stabbed him more times than he could count.[286]

1. The presence of the deceased's DNA on the knife and the scabbard would not have diminished the considerable force of these matters. Nor is the presence of the deceased's DNA in these locations inconsistent with what, on the State's case, had occurred.
2. During his interview, the appellant told the police that he had owned the knife for quite some time, and that the deceased had used the knife from time to time and had handled it. In those circumstances, the presence of the deceased's DNA on the knife and the scabbard did not, in itself, provide substantial support for the appellant's account.
3. We are not satisfied that there is any reasonable possibility that, had the DNA results the subject of ground 4 been adduced in evidence, there would have been any effect upon the jury's verdict.
4. Moreover, as the appellant points out, the DNA report was on the prosecution brief and the results were also on the forensic exhibits list. Thus, it was readily open to defence counsel to adduce these further DNA results through cross‑examination of Officer Welch. In that respect, the position is fundamentally different from Nguyen, which concerned the accused's police interview. If, as occurred in Nguyen, the prosecution declined to adduce the police evidence, the rules of evidence precluded the accused from doing so.
5. For these reasons, no miscarriage of justice arose from the prosecutor's failure to adduce the DNA results the subject of ground 4.

Ground 5: incompetence of counsel Appellant's submissions

1. The appellant submits that the appellant suffered various material irregularities affecting the outcome of his trial, revealed by the following 'errors' of his counsel:[287]

(1) Failing to request that the trial judge direct the jury on the home invader defence and self-defence, despite those defences being 'clearly raised' on the evidence;[288]

(2) failing to lead evidence directly relevant to self-defence, such as what was going through the appellant's mind when he held the knife defensively towards the deceased;[289]

(3) permitting the prosecutor to lead inadmissible DNA evidence from a police officer without sufficient explanation of DNA;

(4) failing to ensure that the prosecutor lead evidence of the DNA on the knife handle, scabbard, and polo shirt, thus depriving the jury of crucial evidence supporting the appellant's account; and

(5) running a defence solely based on unwilled act, which was bound to fail because of the evidence that the deceased would have had to jump onto the knife to impale herself, and which ignored reasonable alternative defences consistent with the stabbing being intentional.[290]

1. The appellant seeks leave to adduce additional evidence in the appeal. In his affidavit, which he seeks leave to adduce, the appellant says that he instructed his counsel that, if the act of stabbing the deceased was a willed act, he acted instinctively in self‑defence as a result of his years of military training.
2. Despite being instructed in this manner, the appellant submits, his trial counsel chose to expressly disavow self‑defence and failed to adduce evidence from the appellant relevant to the belief elements of self‑defence. The appellant submits that this choice was inconsistent with any legitimate forensic decision and 'plainly affected the outcome'.[291]

1. The court received affidavits from both the appellant and the appellant's trial counsel. The appellant was cross‑examined. Counsel for the appellant did not cross‑examine the appellant's trial counsel.
2. It is not necessary to make detailed factual findings because, on the most favourable view of the facts from the appellant's perspective, for reasons to be explained, there is no merit in ground 5. It is sufficient to note the following.
3. It is clear that, in the course of preparation for his trial, the appellant provided his counsel with some detailed notes. The document headed 'Notes and instructions for lawyer' was six pages in length, comprising 42 enumerated points. The first of those points was that, '[i]t was accidental, on my part anyway. [The deceased] came at me'. The second point was that 'at the moment of strike, I would have reacted subconsciously in self‑defence'.
4. Another document the appellant provided to his counsel set out the terms of s 248 of the Code, and its elements.
5. The appellant and his counsel, Ms Patti Chong, discussed the manner in which his defence would be conducted. We accept Ms Chong's evidence, which was not challenged and not contradicted by the appellant's evidence in the course of his cross‑examination, that Ms Chong and the appellant discussed the manner in which the deceased was injured, Ms Chong suggested that it was the result of an unwilled act rather than self‑defence, and the appellant agreed.[292] In the course of this discussion, the appellant reiterated what he had told the police, namely that he did not intend to stab the deceased.[293]
6. As the outline of the course of proceedings demonstrates, Ms Chong conducted the appellant's defence in accordance with those instructions. The appellant's assertions in his affidavit that he was unable to communicate clearly with his trial counsel are belied by consideration of the transcript of his lengthy evidence‑in‑chief.

1. The legal principles applicable to a ground of appeal asserting that a miscarriage of justice arose from the manner in which counsel conducted the trial are well established. They were summarised by this court in Huggins v The State of Western Australia.[294] For present purposes, it is sufficient to refer to the following.
2. An appellant who seeks to demonstrate that the conduct of his or her counsel caused a miscarriage of justice undertakes a heavy burden which is not easily discharged.[295] This is a consequence of the adversarial nature of a criminal trial and the role played by counsel. Ordinarily, an accused is bound by the way the trial is conducted by counsel even if that was not in accordance with the wishes of the client.[296] It is not a ground for setting aside a conviction that decisions made by counsel were made without or contrary to instructions, or involved errors of judgment or even negligence.[297] It is not the province of appellate courts to review the wisdom or prudence of the conduct of a trial by trial counsel.[298] For example, an apparently rational decision by trial counsel as to what evidence to call or not to call does not give rise to a miscarriage of justice simply because an appellate court thinks it worked to the probable disadvantage of the appellant.[299]
3. A ground of appeal asserting that counsel's conduct of the trial caused a miscarriage of justice invites inquiry of an objective character. The appellate court does not examine whether a decision taken by the accused's counsel at the trial was in fact taken for the purpose of obtaining a forensic advantage or avoiding a forensic disadvantage. Rather, the appellate court is concerned only with whether counsel's decision is capable of explanation on that basis. In other words, the question is, could there be any reasonable explanation for the decision?[300]
4. In McMahon,[301] McLure P (Buss and Mazza JJA relevantly agreeing) said as follows:

In this context, miscarriage of justice has two aspects, process and outcome. If the conduct of counsel has deprived the accused of a fair trial according to law, that will give rise to a miscarriage of justice without regard to whether counsel's conduct might have affected the outcome: TKWJ [76] (McHugh J); Nudd v The Queen [2006] HCA 9 [3] - [7] (Gleeson CJ). This corresponds with that limb of the proviso where there is a serious breach of the pre‑suppositions of a trial: Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300 [46]; Wilde v The Queen [1988] HCA 6; (1988) 164 CLR 365, 373. A complete failure to cross examine a complainant or a complete failure to address the jury may result in an unfair trial: TKWJ [76]. So too may wrong advice that an accused is not entitled to give evidence: Nudd [17].

In the majority of cases, irregular conduct of counsel will not deprive the appellant of a fair trial. In such circumstances, the ultimate question of whether a miscarriage of justice has occurred raises two issues. First, did counsel's conduct result in a material irregularity in the trial. Secondly, is there a significant possibility that the irregularity affected the outcome: TKWJ [79] (McHugh J); Ali v The Queen [2005] HCA 8; (2005) 79 ALJR 662 [18] (Hayne J).

The test of whether there is a material irregularity is objective: TKWJ [17], [27] - [28], [107]. Ordinarily, it is difficult to establish a material irregularity when the alleged error of counsel concerned forensic choices upon which competent counsel could have differing views: TKWJ [81]. However, if the error of counsel plainly affected the result of the trial, there will be a miscarriage even though the error involved a forensic choice or judgment. Where the error involves the failure to adduce evidence, there are parallels with the test for the admission of new or fresh evidence: TKWJ [32] (Gaudron J).

1. Within the framework explained by McLure P in the first two paragraphs set out above, the appellant's ground fits into the second category, by which the appellant must show a material irregularity in the trial arising from counsel's conduct and that there is a significant possibility that the irregularity affected the outcome.
2. For the reasons given in determining grounds 1 and 2, counsel's failure to request the trial judge to direct the jury on the home invader defence and on self‑defence was not a material irregularity or otherwise an error.
3. Contrary to the appellant's submission,[302] counsel's decision to expressly disavow self‑defence is readily capable of being understood as a rational forensic decision. The appellant asserted several times, in his interview with the police and in his evidence, that he did not deliberately stab the deceased. If counsel had sought to argue the case on the basis that the appellant intentionally stabbed the deceased in self‑defence, counsel would have had to acknowledge that this meant that the appellant's repeated assertions that he did not deliberately do so were false. Moreover, for reasons already given, there was no evidentiary foundation for a submission that the appellant held the necessary beliefs. The evident forensic benefit of presenting a coherent defence to the jury readily explains a decision not to seek a direction as to self‑defence.
4. Further, an attempt to advance self‑defence would have faced an additional and very substantial obstacle; namely the reasonableness of the appellant's response in stabbing the deceased in the chest in circumstances where she was unarmed.
5. Counsel's alleged failure to lead evidence from the appellant directly relevant to self‑defence does not give rise to, or contribute to, any miscarriage of justice. Trial counsel's open‑ended questions to the appellant, which can be seen in the passage set out at [136] above, gave the appellant every opportunity to say what was going through his mind when, on his evidence, he stepped back and held the knife towards the deceased in a defensive motion. Further, there is no evidence that the appellant would or could have provided answers which would establish an evidentiary foundation for self‑defence. To say, as the appellant's notes to his counsel do, that he 'would have reacted subconsciously in self‑defence' falls well short of doing so. Moreover, the risk that, in attempting to lead evidence in support of self‑defence, the appellant's evidence and defence that the stabbing of the deceased was unwilled would be significantly undermined is readily apparent.
6. For the reasons given in relation to grounds 3 and 4, trial counsel's approach to the DNA evidence involved a reasonable forensic decision. We are not satisfied that there was any material irregularity in relation to the DNA evidence and certainly none that had a significant possibility of affecting the outcome of the trial.
7. The appellant's contention that the unwilled act defence was 'bound to fail' is an assessment made with the benefit of hindsight. As already noted, the fact that an appellate court might think that an apparently rational decision by trial counsel ultimately worked to the probable disadvantage of the appellant does not give rise to a miscarriage of justice: see [225] above.
8. For these reasons, there is no merit in ground 5.

1. For the above reasons, none of the grounds of appeal has merit. Consequently, the application for an extension of time to appeal should be refused.
2. We would admit the appellant's affidavit and Ms Chong's affidavit, and the appellant's oral evidence, as additional evidence in the appeal, to facilitate the resolution of ground 5.
3. We would make orders to the following effect:
   1. The appellant's application to adduce additional evidence is allowed.
   2. The appellant's application for an extension of time within which to appeal is refused.
   3. The appeal is dismissed.

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

[1] For which we will use the convenient shorthand 'defence'.

[166] Wimbridge v The State of Western Australia [2009] WASCA 196 [21]; Duckworth v The State of Western Australia [No 4] [2018] WASCA 2 [24] ‑ [27].

[167] Braysich v The Queen [2011] HCA 14; (2011) 243 CLR 434 [17], [36].

[169] Appellant's submissions [23] - [26], citing ts 563, 575, 578.

[172] Video record of interview (VROI) 16, 109, 112.

[198] Appellant's submissions [30]; appeal ts 35 - 36.

[200] Ugle v The Queen [2002] HCA 25; (2002) 211 CLR 171 [75].

[203] Appellant's submissions [39] - [40], citing Williams v Smith [1960] HCA 22; (1960) 103 CLR 539, 545.

[204] Macaree v The State of Western Australia [2011] WASCA 207.

[205] Hawke v The State of Western Australia [2017] WASCA 40.

[206] Appellant's submissions [44] - [45].

[231] Taiapa v The Queen [2009] HCA 53; (2009) 240 CLR 95 [5].

[232] See [109] above.

[234] Hawke [171]. While Mazza JA was in dissent as to whether there was an evidential basis for the s 23A defence, that does not detract from the general principle stated by his Honour.

[235] Appellant's submissions [28] - [30].

[242] Hawke [188], [194], [199].

[263] Appellant's submissions [54], citing Suresh v The Queen [1998] HCA 23; (1998) 72 ALJR 769 [23].

[266] Appellant's submissions [57], citing ts 378, 701.

[267] Appellant's submissions [58], citing VROI 168, 169.

[268] Appellant's submissions [59], citing ts 709.

[269] Appellant's submissions [60], citing ts 374; prosecution brief 425, 426, 429.

[270] Appellant's submissions [61], citing ts 745 - 746.

[272] R v Soma [2003] HCA 13; (2003) 212 CLR 299 [11], [79]; Johnston v The State of Western Australia [2010] WASCA 121 [4] ‑ [5]; RKT v The State of Western Australia [2017] WASCA 13 [50].

[276] Nudd v The Queen [2006] HCA 9; (2006) 80 ALJR 614 [9]; Baden‑Clay [48]; Hamilton v The Queen [2021] HCA 33; (2021) 95 ALJR 894 [54].

[278] Any such submission would have been inappropriate, given the absence of an evidentiary foundation for it.

[279] Appellant's submissions [63], [64], [66].

[281] Nguyen v The Queen [2020] HCA 23; (2020) 269 CLR 299 [36].

[292] Affidavit of Ms Patti Chong, sworn 26 April 2022 [42].

[293] Affidavit of Ms Patti Chong, sworn 26 April 2022 [44].

[294] Huggins v The State of Western Australia [2018] WASCA 61 [375] ‑ [401].

[295] TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124 [74]; McMahon v The State of Western Australia [2010] WASCA 143 [24]; CFM v The State of Western Australia [2017] WASCA 15 [118].

[296] See the authorities referred to in [197] above.

[297] TKWJ [74], [79]; R v Birks (1990) 19 NSWLR 677, 685; McMahon [24].

[298] Nudd [8] - [9]; KLM v The State of Western Australia [2009] WASCA 73; (2009) 194 A Crim R 503 [51].

[300] TKWJ [17], [27], [107]; Rodi v The State of Western Australia [2017] WASCA 81; (2017) 51 WAR 96 [115].

[301] McMahon [25] ‑ [27]; this passage has been applied by this court many times.