Criminal law - Appeal against conviction - Aggravated burglary - Aiding and abetting - Whether the trial judge misdirected the jury in relation to aiding and abetting - Turns on own facts

2 BUSS JA: The appellant has applied for leave to appeal against conviction.

4 Count 1 alleged that on 22 September 2011, at Kardinya, while in the place of Denise Douglass without her consent, the appellant unlawfully assaulted her, contrary to s 401(2) of the Criminal Code (WA) (the Code). The count also alleged that, immediately before the commission of the offence, the appellant knew or ought to have known that there was another person in the place, and that the place was ordinarily used for human habitation.

5 Count 2 alleged that, on the same date and at the same place as in count 1, the appellant wilfully and unlawfully damaged a window, contrary to s 444(1) of the Code.

6 The appellant was convicted, on his plea of guilty, of count 2. He was convicted, after a trial in the District Court before Stone DCJ and a jury, of count 1.

7 The application for leave to appeal is confined to the appellant's conviction on count 1.

8 The State's case at trial was, in summary, as follows.

9 On the evening of 22 September 2011, the complainant's son, Khian Douglass, and his friend, Robert McCormack, were throwing eggs at houses and motor vehicles while travelling in their own vehicle.

10 As they drove home, Khian Douglass and Mr McCormack noticed a dark vehicle following them.

11 Soon after, at about 10.00pm, when Khian Douglass was at home, his mother, Ms Douglass, heard a vehicle stop in the driveway.

12 Ms Douglass, Khian Douglass and her other son, Decial Douglass, went to the front door. The door flew open and a masked man who was bald or had very short hair entered their home. This man struck Ms Douglass. She fell to the floor.

13 The State's case was that the appellant was the principal offender who entered the house and struck Ms Douglass. Alternatively, its case was that the appellant was one of a number of people who remained outside Ms Douglass' home, but aided and abetted the principal offender.

14 The defence case at trial was, in summary, as follows.

15 The appellant gave sworn evidence in his defence. He admitted that at the material time he was outside Ms Douglass' home. However, he denied that he was the principal offender, and he also denied that he was aware of what was happening within the home.

16 The sole proposed ground of appeal alleges that the trial judge erred in failing to direct the jury that the State had to establish beyond reasonable doubt 'the "knowledge" aspect of aiding and abetting' in relation to the State's alternative case based on s 7 of the Code.

18 First, the appellant's 'knowledge' as to what was occurring within the home was an indispensible link in the State's circumstantial case based on s 7. Secondly, in dealing with a note from the jury, his Honour failed adequately to direct the jury that the appellant's culpability under s 7 had to be established beyond reasonable doubt. Thirdly, any reference by his Honour to the necessity for 'identity' to be established beyond reasonable doubt went only to the issue of whether the appellant was the principal offender, and not to the State's alternative case based on s 7.

19 The trial judge gave the jury orthodox directions on the presumption of innocence and the burden and standard of proof. He told them on multiple occasions that the State had the burden of proving the offence and that the standard of proof was beyond reasonable doubt (ts 379 - 380).

20 His Honour specified the elements of the offence and said that the State had to prove each of the elements beyond reasonable doubt (ts 381). He noted that the first element was 'identity', and added:

The State must prove that [the appellant] did the things that the State says constitute this offence. This element is in issue. It's been what this trial's been all about (ts 381).

21 The trial judge instructed the jury that, for the appellant to be guilty as a person who aided another to commit the offence, 'there must be actual knowledge of the facts amounting to the offence for which aid is being lent' (ts 382). He then elaborated:

For a person to be aiding in the commission of an offence by his or her presence, the following conditions must be satisfied. First: the person who is present must have actual knowledge of the facts amounting to the offence. Second: the person must intend by his presence to give encouragement to the commission of the offence. Third: he must actually give encouragement to the offence (ts 382).

22 His Honour reiterated immediately that the State could prove that the appellant was guilty if it proved 'some positive act on [the appellant's part] ... in the nature of assistance or encouragement either by conduct or by word' and, in addition, if it proved that the appellant 'when he gave his aid, had knowledge that the offence was being committed' (ts 382).

23 The trial judge told the jury that the State's case was that the only reasonable inference open on the whole of the evidence was that the appellant was the masked intruder in Ms Douglass' home; alternatively, he was assisting or aiding the masked intruder.

24 His Honour emphasised that the appellant was presumed to be innocent unless he was proved guilty beyond reasonable doubt (ts 383). Accordingly, before the jury could draw an inference against the appellant, it must be satisfied 'that it is the only inference reasonably available' (ts 383). He then explained:

In relation to the facts from which the State asks you to draw an inference, you do not consider those facts in isolation. But you consider them as a whole to determine whether the inference of guilt is the only inference reasonably available. You look at the total package to draw inferences. You cannot draw an inference that an accused person is guilty of an offence with which that person has been charged, unless the evidence is inconsistent with any reasonable conclusion other than that the person is guilty of that charge (ts 383).

25 The trial judge directed the jury that it would not be open to it to draw an inference from the evidence that the appellant was, relevantly, 'assisting or aiding the masked intruder to commit the offence of burglary unless [it was] satisfied beyond reasonable doubt' (ts 383 - 384). A little later, his Honour instructed the jury in relation to the element of knowledge and said it would not be open to the jury to draw an inference of knowledge against the appellant unless it was satisfied beyond reasonable doubt that he had the requisite knowledge:

The State must prove that at the time that [the appellant] was aiding the other person [the appellant] knew that the offence of being in the house without consent and assaulting someone was being committed by that other person. As I've explained to you in this case knowledge means awareness or a belief in the likelihood that the offence of being in the house without consent and assaulting someone was being committed. Knowledge is a state of mind. Because it is a state of mind ... it can never be proved directly as a fact. It can only be inferred from other facts which are proved and you determine a person's state of mind from the evidence of all the circumstances in which that person said or did those things.

The State submits that ... you should draw the inference that at that time [the appellant] knew he was aiding another person to commit the offence of being in the house without consent and assaulting someone.

It would not be open to you to draw that inference unless you were satisfied beyond reasonable doubt (ts 385).

26 All of the trial judge's instructions to the jury, which I have set out at [20] - [25] above, were given in the context of the first element of the offence; that is, the element described by his Honour as 'identity' (ts 381 - 385). After giving those instructions his Honour turned to the remaining elements of the offence (ts 386 - 387).

27 Neither the prosecutor nor defence counsel sought any additional direction or redirection (ts 394).

28 After the jury retired to consider its verdict it sent this note to his Honour:

We need clarification of the elements that constitute the law of enabling and aiding, specifically in the aspect of knowledge of the crime to be committed (ts 396, 398).

29 The trial judge told the prosecutor and defence counsel, in the absence of the jury, that in his view the jury was asking for guidance on the specific elements of the offence (ts 397).

30 When the jury returned, his Honour gave this additional direction, relevantly:

To be guilty of an offence as a person who aids another person to commit an offence the law is that there must be actual knowledge of the facts amounting to the offence for which aid is being lent.

...

For a person to be aiding in the commission of an offence by his presence the following conditions must be satisfied.

First, the person who is present must have actual knowledge of the facts amounting to the offence and as I explained, the offence is being in the place without consent and assault upon someone.

Second, the person must intend by his presence to give encouragement to the commission of the offence.

Third, he must actually give encouragement to the offence.

The State can prove that [the appellant] is guilty of this offence if the State can prove some positive act on his part.

...

In addition you must be satisfied that [the appellant] when he gave his aid had knowledge that the offence was being committed.

Knowledge means awareness or a belief in the likelihood that the offence of being in the house without consent and assaulting someone has been committed. The State must prove that at the time that [the appellant] was aiding the other person, [the appellant] knew that the offence of being in the house without consent and assaulting someone was being committed by that other person.

Knowledge is a state of mind. Because it is a state of mind it can never be directly proved as a fact, it can only be inferred from other facts which are proved. You determine a person's state of mind from the evidence of all the circumstances in which that person said or did those things (ts 398 - 399).

31 Neither the prosecutor nor defence counsel sought any additional direction or redirection (ts 399).

The merits of the proposed ground of appeal

32 As to counsel for the appellant's first point, the appellant's 'knowledge' as to what was occurring within the home is properly to be characterised as an element of the offence rather than an indispensible link in the State's circumstantial case based on s 7 of the Code. The trial judge directed the jury accurately and in detail on each of the elements of the

offence (ts 381 - 387). Also, he instructed the jury that it would not be open to it to draw an inference of knowledge against the appellant unless it was satisfied beyond reasonable doubt that he had the requisite knowledge (ts 385). See [25] above.

33 As to counsel for the appellant's second point, his Honour was correctly of the view that the jury, in its note, was seeking guidance on the specific elements of the offence (ts 397). After discussing the note with the prosecutor and defence counsel, his Honour provided guidance in an additional direction (ts 398 - 399). It was unnecessary for his Honour to repeat his earlier directions on the standard of proof.

34 As to counsel for the appellant's third point, it is plain, on a fair reading of his Honour's summing up as a whole, that his reference to the necessity for 'identity' to be established beyond reasonable doubt applied both to the State's primary case that the appellant was the principal offender and, also, to its alternative case based on s 7 (ts 381 - 385). See [20] - [26] above.

35 The proposed ground of appeal does not have a reasonable prospect of success. It is unarguable.

36 Leave to appeal should be refused. The appeal must therefore be dismissed.