GRM -v- THE STATE OF WESTERN AUSTRALIA [2026] WASCA 97

[2026] WASCA 97 Page 1 JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : GRM -v- THE STATE OF WESTERN AUSTRALIA [2026] WASCA 97 CORAM : THOMSON P MITCHELL JA HALL JA HEARD : 2 JUNE 2026 DELIVERED : 16 JULY 2026 FILE NO/S : CACR 107 of 2025 BETWEEN : GRM Appellant AND THE STATE OF WESTERN AUSTRALIA Respondent ON APPEAL FROM: Jurisdiction : CHILDREN'S COURT OF WESTERN AUSTRALIA Coram : QUAIL P File Number : CC XX XXX of XXXX Catchwords: Criminal law - Appeal against conviction - Causing grievous bodily harm - Self-defence - Evidentiary onus - Where appellant did not give evidence - -- 1 of 35 -- [2026] WASCA 97 Page 2 Where only eyewitness looked away when blow was delivered - Whether it was open on evidence to infer appellant was defending himself from a harmful act by victim - Difference between inferences based on evidence and speculation Criminal law - Appeal against conviction - Where prosecution failed to call appellant's mother as a witness - Where mother had not given witness statement and there was no certainty about what she could say - Whether prosecutor was obliged to call mother in these circumstances - Whether failure to call mother caused a miscarriage of justice Legislation: Criminal Code (WA), s 248, s 297(3) Result: Application to adduce additional evidence refused Leave to appeal granted Appeal dismissed Category: A Representation: Counsel: Appellant : P D Coleridge & T A Clelland Respondent : R P Arndt & M L Wong Solicitors: Appellant : Aboriginal Legal Service (WA) Respondent : Director of Public Prosecutions (WA) Case(s) referred to in decision(s): Braysich v The Queen [2011] HCA 14; (2011) 243 CLR 434 Caswell v Powell Duffryn Associated Collieries Ltd [1940] AC 152 Dansie v The Queen [2022] HCA 25; (2022) 274 CLR 651 Goodwyn v The State of Western Australia [2013] WASCA 141; (2013) 45 WAR 328 -- 2 of 35 -- [2026] WASCA 97 Page 3 Hawke v The State of Western Australia [2017] WASCA 40 Heijne v The State of Western Australia [2010] WASCA 86 Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 Jones v The State of Western Australia [2024] WASCA 115 Peacock v The King [1911] HCA 66; (1911) 13 CLR 619 Puttick v The State of Western Australia [2026] WASCA 52 R v Apostilides [1984] HCA 38; (1984) 154 CLR 563 R v Baden-Clay [2016] HCA 35; (2016) 258 CLR 308 R v Khazaal [2012] HCA 26; (2012) 246 CLR 601 Seltsam Pty Ltd v McGuiness [2000] NSWCA 29; (2000) 49 NSWLR 262 Sivaraja v The Queen [2017] NSWCCA 236 Sturniolo v The State of Western Australia [2023] WASCA 147 Thorns v The State of Western Australia [2022] WASCA 127 Whitehorn v The Queen [1983] HCA 42; (1983) 152 CLR 657 -- 3 of 35 -- [2026] WASCA 97 Page 4 JUDGMENT OF THE COURT: 1 The appellant, a juvenile, was found guilty after a trial by judge alone in the Children's Court of one count of unlawfully doing grievous bodily harm, contrary to s 297(3) of the Criminal Code (WA) (Code). He was sentenced to a 10-month juvenile conditional release order. He seeks leave to appeal against his conviction. 2 The prosecution case was that the appellant struck Dominic Gellert (a pseudonym) to the neck with a samurai sword and thereby caused a bodily injury likely to cause permanent injury to health. Mr Gellert is the appellant's mother's partner. It was not in dispute that the appellant delivered the blow, and that this resulted in a serious injury to Mr Gellert. What was in issue was whether the appellant had acted in self-defence. 3 Neither Mr Gellert nor the appellant gave evidence at the trial. The sole witness to the events was the appellant's 15-year-old cousin, Marcus Tufnell (a pseudonym). Mr Tufnell observed the events leading up to, and immediately following, the blow, but looked away during the four to five seconds in which the blow was delivered. The learned trial judge concluded that the prosecution had excluded self-defence beyond reasonable doubt, in that whilst the appellant may have believed his act was necessary to defend himself from harm, there were no reasonable grounds for that belief and, further, that striking Mr Gellert with the sword was not a reasonable response in the circumstances as the appellant believed them to be. 4 There are three grounds of appeal. The first ground alleges that the verdict of guilty was unreasonable or cannot be supported, having regard to the whole of the evidence. The verdict is said to be unreasonable because it was not open to exclude beyond reasonable doubt that the appellant acted in self-defence. The second ground alleges that the trial judge made a material error of fact in finding that there was no 'fracas or physical contact' between the appellant and Mr Gellert. The third ground alleges that the prosecutor's failure to call the appellant's mother, Hannah Francis (a pseudonym), as a witness caused a miscarriage of justice. 5 The first ground hinges on whether there was a reasonable possibility that Mr Gellert lunged at the appellant whilst holding a knife. There was no evidence that such an aggressive movement was made. The evidence was that Mr Gellert had stepped towards the appellant, that he had a small knife in his hand, that this hand was held -- 4 of 35 -- [2026] WASCA 97 Page 5 down by his side, that he and the appellant were swearing at each other, and that they were more than an arm's length apart. 6 The appellant submits, however, that it is possible that in the few seconds that Mr Tufnell looked away, Mr Gellert lunged at him with the knife. The appellant submits that the onus was on the prosecution to exclude self-defence based on that possibility. The appellant argues that it was open on the evidence to infer that he struck Mr Gellert with the sword in order to protect himself from being stabbed in the circumstances described. 7 There is no evidential foundation for inferring that the appellant might have believed that he needed to defend himself from being stabbed because Mr Gellert lunged at him with the knife. If self-defence arose, it had to be determined on the evidence that was adduced at the trial. For the purpose of deciding whether a defence is open, any inferences favourable to the accused should be drawn, but that does not require, or permit, speculation. 8 On the basis of the evidence, the learned trial judge was correct to conclude that self-defence had been excluded. It was open to conclude that there were no reasonable grounds for the appellant to believe that his act of striking Mr Gellert with the sword was necessary to defend himself from a harmful act. Furthermore, it was open to conclude that striking Mr Gellert with the sword was not a reasonable response in the circumstances as the appellant believed them to be (insofar as this could be determined in the absence of evidence from the appellant). The learned trial judge did not err by finding that self-defence was excluded. Accordingly, the verdict was not unreasonable or unsupported by the evidence. 9 As regards ground 2, the trial judge's finding that there was no fracas or physical contact occurred in the context of his Honour considering whether there were reasonable grounds for the appellant to believe that it was necessary for him to strike Mr Gellert in the neck with the sword. In this context, it was relevant to consider whether there had been any actual contact or assault. Properly understood, his Honour's reference to 'fracas or physical contact'1 was to the fact that there was no evidence of any contact between, or injury to, either of the parties, other than the injury caused by the sword blow. The fact that Mr Tufnell could not say what had occurred in the four to five 1 ts 156; BGAB 23. -- 5 of 35 -- [2026] WASCA 97 Page 6 seconds after he looked away did not detract from this finding. The alleged error of fact has not been made out. 10 As to ground 3, Ms Francis declined to provide a witness statement. There was good reason to think, given that she is the mother of the appellant, that she would not be an impartial witness. While she made oral statements at the scene that the appellant was acting in self-defence, it was not clear that those statements were based on personal observations, and, in any event, she later denied having seen anything. 11 In these circumstances, it was plainly open to the prosecutor to exercise the discretion not to call Ms Francis. The appellant submits that, even in the absence of any prosecutorial misconduct, the failure to call Ms Francis resulted in a miscarriage of justice because it was possible that she could have given relevant evidence. That submission must fail given that it was not known at the trial, and is not now known, whether Ms Francis could give any relevant evidence. It is also relevant to take into account that the appellant was aware of what Ms Francis had told police at the scene, was aware that the prosecution did not intend to call her as a witness, and had an opportunity to call her himself. 12 For the more detailed reasons that follow, we would grant leave to appeal on ground 1, refuse leave on grounds 2 and 3, and dismiss the appeal. The prosecution case 13 On the evening of 8 September 2024, the appellant was at home with his mother, Hannah Francis. He was playing video games with his 15-year-old cousin, Marcus Tufnell. Dominic Gellert, Ms Francis's partner, was also present in the house.2 14 The appellant and Mr Tufnell were in one of the rooms of the house. They heard Ms Francis and Mr Gellert arguing in another room. The appellant got up and walked out of the room. He then returned and picked up a samurai sword before going to the kitchen, where Mr Gellert and Ms Francis were. Mr Tufnell followed the appellant and tried to take the sword from him, but the appellant was swinging it 2 WAB 7. -- 6 of 35 -- [2026] WASCA 97 Page 7 around.3 Ms Francis pushed Mr Gellert out of the house, through the front door. 4 15 The appellant went to the back door, followed by Mr Tufnell. The appellant left the house and jumped over the fence and walked out onto the road. He was still carrying the samurai sword. Mr Gellert was outside on the footpath. He was walking away from the house. When he saw the appellant, he turned around and walked towards him. By this stage, Mr Gellert was holding a small folding knife with the blade out. The knife was held by Mr Gellert at his side. The appellant and Mr Gellert were swearing at, and arguing with, each other.5 They were standing a short distance apart, a little more than arm's reach.6 16 During the course of this interaction, the appellant struck Mr Gellert in the neck with the samurai sword. The blow caused a large laceration to the left side of the back of Mr Gellert's neck. Mr Gellert turned and walked away, ultimately walking to a hospital, where he received medical attention.7 The blow to the neck gave rise to the charge of unlawfully causing grievous bodily harm. Pre-trial argument 17 The only witness to the critical events was Marcus Tufnell.8 18 Mr Gellert was spoken to by police at the hospital shortly after the incident. He subsequently refused to sign a written statement, and indicated that he would refuse to appear as a witness at the trial. He was served with a summons to attend a deposition hearing, but refused to comply with the summons. The prosecution advised the defence that Mr Gellert would not be called as a witness. 9 19 Ms Francis was spoken to by police at the scene. The exchange was recorded on a police officer's body-worn camera. The footage captured Ms Francis stating that she would not appear as a witness against her son. She refused to provide a written statement to police, and made clear that she would not comply with any order to attend court. Though a deposition hearing was not attempted in respect of 3 ts 97, 140. 4 ts 140. 5 ts 140. 6 ts 154. 7 ts 140. 8 WAB 8; ts 142. 9 WAB 32. -- 7 of 35 -- [2026] WASCA 97 Page 8 Ms Francis, the prosecution concluded that she would not be called as a prosecution witness.10 20 Prior to the commencement of the trial, the appellant made an application for a ruling that there was no case to answer, primarily on the basis that the prosecution could offer no evidence as to what occurred in the four to five seconds in which the sword made contact with Mr Gellert's neck. That is because Mr Tufnell's evidence was that he looked away after seeing the appellant raise the sword and did not see the physical contact. That application was dismissed, the trial judge holding that there was a case to answer based on the statements made by Mr Tufnell regarding what had occurred immediately prior to the blow.11 21 Defence counsel also sought to challenge the prosecutor's decision not to call Ms Francis. Counsel contended that Ms Francis was a necessary witness because she had told the police that she had observed some of what occurred between the appellant and Mr Gellert whilst she was inside the house. This will be referred to in more detail in respect of ground 3. For present purposes, it is sufficient to note that Ms Francis told police that the appellant and Mr Gellert had been 'swinging' at each other, and that the appellant was acting in self-defence.12 22 The prosecutor explained that Ms Francis had repeatedly communicated that she would not participate in a trial against the appellant. Further, police dealings with Ms Francis had demonstrated that she would be an unreliable witness, having made false statements to police at the scene, which were recorded on body-worn camera. This was a reference to statements made regarding the location of the samurai sword. The prosecutor explained that, in order to call Ms Francis, he would first be obliged to meet with her, and the view had been formed that she would not be willing to attend such a meeting.13 23 There was also a pre-trial discussion regarding the application of s 248(5) of the Code.14 That subsection provides that a 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.15 There was discussion 10 WAB 32. 11 WAB 32 - 33. 12 WAB 33. 13 WAB 33. 14 WAB 33. 15 Code, s 248(5). -- 8 of 35 -- [2026] WASCA 97 Page 9 regarding whether the prosecution would assert that self-defence was not open because Mr Gellert's production of a knife was, in the circumstances, lawful. Ultimately, the prosecutor informed the court that s 248(5) would not be relied upon because to do so would be unfair in circumstances where Mr Gellert would not be called to explain his subjective belief, and would not be available for cross-examination.16 Relevant evidence Admissions 24 The appellant made admissions pursuant to s 32 of the Evidence Act 1906 (WA) as to the following facts:17 1. The appellant was present at the relevant location on the evening of 8 September 2024. 2. The appellant was holding a long-bladed weapon. 3. The appellant struck Mr Gellert with that long-bladed weapon, causing an injury. 4. The long-bladed weapon was subsequently recovered from a vacant block on the same road. 5. The injury suffered by Mr Gellert amounted to grievous bodily harm, in that, without medical treatment, it was likely to cause permanent injury to health through the weakening of the muscles in the neck. 6. Police attended at the scene after 7.50 pm on 8 September 2024. 7. Present in the area, and spoken to by police, were the appellant, Ms Francis, Mr Tufnell, and Mr Tufnell's girlfriend. 8. Hannah Francis provided an account to police, which was recorded on body-worn camera footage. Marcus Tufnell 25 Mr Tufnell was the critical witness at the trial. At the time of the incident, he was aged 15. He was 16 when he gave evidence. He is the 16 WAB 33 - 34. 17 BGAB 32. -- 9 of 35 -- [2026] WASCA 97 Page 10 nephew of Ms Francis and the cousin of the appellant.18 He was staying at Ms Francis's house at the relevant time.19 26 Mr Tufnell said that on the evening of 8 September 2024, he was in a room of the house playing video games with the appellant. He was then asked:20 Okay. Did anything happen while you were playing video games?--- We were just sitting down, and we had that - other than that - arguing. And, yes. [The appellant], he got up, and I looked at him. I said, 'It's all right. Just sit down. Just finish doing what we're doing. Now, stop. Now, stop arguing.' You know how it is? Take up your time, and you know. No, I'm sick of it, I'm sick of it. Yes. Yes?---I just don't want it to happen all the time. All right?---And, I don't know what happened, but he walked out there, and he come back and he - he grabbed this thing now - that sword. 27 There was then a short interruption, before Mr Tufnell continued:21 You said he grabbed the thing. What thing did he grab?---His sword. What does the sword look like?---It was, like, you know them - them samurai swords? Yes. Where - - -?---It was one of them - it was one of those. Where in the room was the samurai sword?---It was in the corner. Yes. Had you - you've seen that before?---Yes. Yes. What did - what happened after he grabbed the samurai sword?--- He walked out into the kitchen. I jumped up and I followed him out there. And I seen him, he was standing there. Him and [Mr Gellert] - they was arguing. And I was trying to grab it off him, but he was swinging it around, so I stepped back, because I didn't want to get hit with it myself. Yes?---And that's when - [Ms Francis] pushed [Mr Gellert] out the front door. And then we walked - we - [the appellant] ran around the back. When he ran around the back, I followed him. He jumped the back fence and I jumped the fence. And then we walked out onto a road. He - and I was walking along behind him, and [Mr Gellert] was already walking up the road. But he turned around when he seen [the 18 ts 95, 150. 19 ts 139 - 140. 20 ts 96. 21 ts 96 - 97. -- 10 of 35 -- [2026] WASCA 97 Page 11 appellant], and - yes - -they was standing up, just like - not far from each other, and then that's when they was swearing at each other. I seen [sic] [the appellant] with his hand up, before, like, before he hit him, I looked away. Because that - I didn't want to see what he was going to do, and that there. 28 Mr Tufnell was taken through those events in more detail. In particular, he was asked about how the appellant and Mr Gellert came to be in close proximity:22 Now, when you got to the road, where was [Mr Gellert]?---He was on the footpath, standing, like, not - - - On the same side of the road to the house, or the other side of the road?- --On the other side of the road where - - - Yes?--- - - - near where it happened. Yes. And was he like standing still or was he moving?---He was standing still there. Yes. And what did you see [the appellant] do at that point?---They was arguing there with each other. And I seen [the appellant] lift his hand up. When he lifted his hand up, and he was going to hit him, I looked away. Yes?---And when I looked back, I just seen [Mr Gellert] holding his neck. And then [Mr Gellert] looked at, like, are you dead? And that's when [the appellant] turned around, and I walked up to [the appellant], and I said 'Bro, you're a dumb cunt. You know, you're going to jail now for that there.' I will just stop you there a sec. Hang on. HIS HONOUR: Can you just hang on a tick, [Marcus]. [PROSECUTOR]: When you - before you saw [the appellant] lift his hand up, how close were [Mr Gellert] and [the appellant] standing to each other?---Like, not - not that far, I don't think. Yes, not that far from each other. Yes. Do you reckon either of them could have put a hand out and reach, and touch the other? Like that close or a bit further?---Just a little bit further than that. Yes. You said they were arguing. Could you hear what they were saying, or do you remember what they said?---No, they were just swearing at each other, cursing each other. 22 ts 98 - 99. -- 11 of 35 -- [2026] WASCA 97 Page 12 Yes. You said cursing each other. What do you mean by that?---Like, swearing at each other. Yes. And how did their voices sound?---Angry and loud. Yes. And both of them sounded angry and loud?---Yes. Yes. Before you see [the appellant] lift his hand up, did either of them move their hands?---I don't really remember. Yes. Did you see if [Mr Gellert] had anything in his hand?---He had his little - little knife in his hand. Yes. And what does his little knife look like?---Just a little Rambo knife. Yes. How long do you reckon the blade of it is?---Not that long. It's just tiny. Yes. And where was the knife?---He had it in his hand. Yes. Where was his hand?---Down by his side. Did you see it move at all?---No. You said that you saw [the appellant] lift his hand up, and that's when you looked away. Can you describe for us how he lifted his hand up?--- Like, he was, like, getting ready to hit him. Yes. Did he have anything in his hand?---[The appellant]? Yes?---Yes, he had his Samurai sword. Okay. So when he lifted his hand, is he lifting the sword too?---Yes. Yes. How long do you reckon you had looked away for?---Probably for four, five seconds. Not that long. Yes. And then when you looked back, you said [Mr Gellert] was holding his neck?---Yes. 29 In cross-examination, Mr Tufnell was asked about the appellant and Mr Gellert's movements:23 Now, I want to ask you about when [Mr Gellert] saw [the appellant] on the street, okay? So that's what I'm asking you about. At the start, before you boys came out there, [Mr Gellert] was walking away, right?- --Yes. But when he saw [the appellant], he turned around, didn't he?---Yes. 23 ts 106. -- 12 of 35 -- [2026] WASCA 97 Page 13 Yes. And he actually started to walk a little bit towards [the appellant], didn't he?---Yes. HIS HONOUR: Sorry, I saw you nod your head. What was that - is that - - -?---Yes. Yes. Okay. [DEFENCE COUNSEL]: Now, at that stage, when he was walking towards [the appellant], he had that blade out, didn't he?---Yes. Okay. And they were both swearing at each other, and saying threatening things; is that right?---Yes. 30 Later in cross-examination, Mr Tufnell was asked whether he could remember telling a police officer at the scene that Mr Gellert had swung first, and that the appellant had reacted. Mr Tufnell said he could not recall that. A video clip of the body-worn camera footage was then played, and Mr Tufnell accepted that he had said words to that effect to police. When asked whether that was the truth, Mr Tufnell responded, 'Really, I can't remember, man'.24 31 That issue was returned to in re-examination:25 So do you remember - while [the appellant] and [Mr Gellert] were on the road, do you remember [Mr Gellert] swinging at [the appellant] at all?---I can't remember. All right?---I don't think so. The trial judge's reasons 32 The trial judge noted that the State had not called Mr Gellert or Ms Francis, and that he had been asked to draw an adverse inference from that failure. In that regard, his Honour said:26 I'm satisfied that police spoke to both the complainant and his partner, [Ms Francis], and they have refused to cooperate with the State and refused to provide signed witness statements. I ordered that [Mr Gellert] could be deposed prior to trial, that did not proceed for reasons which are not in evidence. No attempt was made to depose [Ms Francis]. I accept Detective Waller's evidence about her endeavours to secure cooperation from the adult witnesses. I'm satisfied at the time of the trial, they both remained unwilling to cooperate with the State. In those circumstances, I'm not prepared to draw the inference defence contend I should. 24 ts 107- 108. 25 ts 109. 26 ts 142; BGAB 9. -- 13 of 35 -- [2026] WASCA 97 Page 14 33 The trial judge noted that the prosecution case depended critically upon the evidence of Mr Tufnell, and that he had to be satisfied beyond reasonable doubt as to the truthfulness, accuracy, and reliability of Mr Tufnell's evidence before he could find the appellant guilty. His Honour noted Mr Tufnell's out-of-court statement regarding who had swung first, but said that, given that Mr Tufnell had not adopted his out-of-court statement, it was not available as proof of the truth of what he said. In those circumstances, there was no evidence from Mr Tufnell that Mr Gellert had swung first. The out-of-court statement was only relevant as an inconsistent statement when it came to assessing Mr Tufnell's credit and reliability.27 34 The trial judge then turned to the question of self-defence. His Honour said:28 Whether [the appellant] was acting in self-defence is the live issue in this trial, and I accept the defence submission that evidence of [Mr Gellert's] history of propensity for family violence, which is contained in exhibits 6 and 7, and also in relation to evidence about what happened on the night in relation to his conduct, is relevant in determining whether [the appellant] had a belief that an act was necessary to defend himself or another person from a harmful act, including a harmful act that was not imminent, and [the appellant's] act was a reasonable response by him in the circumstances as he believes them to be, and whether there were reasonable grounds for a particular belief by [the appellant]. I recognise that family violence may consist of separate acts that form part of a pattern of behaviour which can amount to abuse, even though some or all of those acts may, when viewed in isolation, appear to be minor or trivial. It is the experience of the court - or that experience shows - that court's experience shows that people may react differently to family violence, and there is no typical, proper or normal response to family violence. The experience shows that decisions made by a person subjected to family violence about how to address, respond to or avoid family violence may be influenced by a variety of factors, and these influences may include the violence itself, social, cultural, economic or personal factors, or inequities experienced by the person, including inequities associated with, if not limited to, race and age. I recognise, as [defence counsel] properly identified, that I must carefully consider this issue and the availability of self-defence, having [regard] to the power imbalance between [Mr Gellert] as an adult and 27 ts 142 - 143; BGAB 9 - 10. 28 ts 143 - 144; BGAB 10 - 11. -- 14 of 35 -- [2026] WASCA 97 Page 15 stepfather, and [the appellant] as a teenage boy and stepson, in the circumstances in which he lived. 35 The trial judge noted that the defence had tendered a number of police incident reports which referred to occasions when police had been called out to deal with reports of domestic violence by Mr Gellert.29 36 The trial judge then referred to the elements of the offence, before returning to the question of self-defence:30 An act - here, striking with a sword - will be authorised, justified or excused by law if it is done in self-defence. In order for the State to prove that [the appellant] unlawfully did grievous bodily harm to [Mr Gellert], the State must prove beyond reasonable doubt that [the appellant] was not acting in self-defence when he struck him. At law, a harmful act - striking with a sword - will be done in self-defence only if each of the following four circumstances exist: first, the person must believe that a harmful act is necessary to defend himself or another from a harmful act. Second, there must be reasonable grounds for the person to believe that a harmful act be necessary to defend himself or another from a harmful act. Third, the person's harmful act must be a reasonable response by him in the circumstances as he believes them to be. Fourth, there must be reasonable grounds for the person's belief as to those circumstances. 37 After referring to the evidence, the trial judge then made the following factual finding:31 I'm satisfied that [Ms Francis] and [Mr Gellert's] relationship was characterised by family violence, including arguing, shouting, abuse, and assaults, which occurred sporadically, when I look at the documents, at least that were reported to police, which is the evidence before me, over the course of the years of their relationship. I'm satisfied [Ms Francis] was a victim of such family violence perpetrated by [Mr Gellert], even though [Marcus] had never seen him hit her. I'm satisfied [the appellant] had witnessed such incidents and was aware of others. I'm satisfied he believed that it happened regularly, and he was tired of it happening. I'm satisfied that he was protective of his mother. On 8 September, I'm satisfied [Mr Gellert] was in an angry state, even before the argument and violence with [Ms Francis] that night. 29 ts 144; BGAB 11. 30 ts 147 - 148; BGAB 14 - 15. 31 ts 152; BGAB 19. -- 15 of 35 -- [2026] WASCA 97 Page 16 38 A little later, the trial judge said that he was satisfied that Mr Gellert carried a rainbow-coloured folding knife, and that both Mr Tufnell and the appellant knew that Mr Gellert habitually carried that knife. His Honour found that the appellant was upset when he picked up the samurai sword, which, when unsheathed, was one metre long. He was satisfied that the appellant walked to the kitchen carrying the sword, and that Mr Gellert and the appellant argued and were angry. The appellant swung the sword around in the kitchen in anger, and Mr Tufnell stepped back because he did not want to be hit. At this stage, Mr Gellert had his knife in his pocket, or at least somewhere that was not visible. Ms Francis then pushed Mr Gellert out of the front door.32 39 The trial judge then said:33 I'm satisfied beyond reasonable doubt that when she did so and [Mr Gellert] was outside the house, any reasonable possibility of self-defence of another by [the appellant] was at an end, and there is no evidential foundation for self-defence of another after that point. I'm satisfied that [the appellant], who was still upset and angry, went out the back door of the house, still carrying the sword. [Marcus] followed him out. [Marcus] wanted to stop [the appellant]. I disregard [Marcus] answer at the top of transcript 98: 'He won't hesitate to do anything.' That was an inadmissible opinion. I'm satisfied [the appellant] followed [Mr Gellert] down the road with the sword in his hand. It was night. I have no evidence of lighting conditions, but I'm satisfied [Marcus] was close enough and the lighting good enough that he could see what was happening. I'm satisfied that [Mr Gellert] became aware that [the appellant] was following him and stopped and looked at him. I'm satisfied beyond reasonable doubt that the only conclusions I can reasonably draw are that [Mr Gellert] saw [the appellant] was still armed with the samurai sword and he took out his folding knife, opened it, and started to walk towards [the appellant] with it in his hand but at his side. And secondly, that [the appellant] saw [Mr Gellert] with the blade in his hand coming towards him, and he - that is, [the appellant], continued to approach [Mr Gellert]. I'm satisfied that they were both loudly swearing at each other and threatening each other, and that both were angry. I'm satisfied they were facing each other at just over arm's distance apart. They could not yet touch each other by hand. [Mr Gellert] could not yet reach [the appellant] with his knife without lifting it from his side and lunging or 32 ts 153; BGAB 20. 33 ts 153 - 154; BGAB 20 - 21. -- 16 of 35 -- [2026] WASCA 97 Page 17 continuing towards [the appellant]. I'm satisfied [the appellant] could reach [Mr Gellert] because the sword had greater reach. I'm satisfied that [the appellant] raised his arm - his hand holding the sword up. I'm satisfied [Marcus] looked away at that point because he didn't want to see what might happen next. I'm satisfied that [Marcus] looked away for only a short time, probably four or five seconds. I'm satisfied that when he looked back, [Mr Gellert] was still standing and holding his neck. [Mr Gellert] said 'You dead' to [the appellant], and that's where I went back and checked the audio. So [Mr Gellert] said 'you dead' to [the appellant]. [Mr Gellert] then walked away up the road. [The appellant] stayed where he was with [Marcus], and [Marcus] sat down on the kerb. [Marcus] said something to [the appellant] which is not relevant to my determination of the issues. I'm satisfied that [Marcus] evidence about those matters is reliable and true. His inconsistency with out of court statements reinforced his credibility to me, namely that he was honestly giving evidence of what he could remember, and that out of court inconsistency in no way undermined his reliability regarding those facts I have found. 40 As to self-defence, his Honour said:34 Turning then to self-defence, on the findings I have made thus far, I'm satisfied beyond reasonable doubt there is no scope for self-defence and no evidential foundation for it to the point where [Mr Gellert] turned around to face [the appellant], pulled out his knife, and held it down to his side, and started to walk towards and engage with [the appellant], both of them swearing and shouting and angry. Up to that point, [the appellant] was the aggressor. He followed [Mr Gellert] out of the house with a sword when [Mr Gellert] was leaving, and [Mr Gellert] only pulled out his knife because [the appellant] had the sword. If the State had not disavowed section 248(5) and (6), properly so in the circumstances of this case, it would be much easier to resolve. At that point, when [Mr Gellert] was walking towards him angry and holding the knife, I cannot exclude the possibility that [the appellant] believed that [Mr Gellert] was going to fight and hurt him with the knife he could see in [Mr Gellert's] hand. His holding up the sword may, in that sense, have been a defensive threat to keep [Mr Gellert] at bay, and to strike what he believed necessary to defend himself from that threat. Now, although there was time and a critical four or five second gap for more to have occurred, for [Mr Gellert] to raise his knife arm or him to swing at [the appellant], there is no evidential foundation for that, and I cannot 34 ts 155 - 158; BGAB 22 - 25. -- 17 of 35 -- [2026] WASCA 97 Page 18 speculate about those or other hypothetical possibilities. I can and do exclude that there was any fracas or physical contact between [the appellant] and [Mr Gellert], other than by the single blow with the sword. There was no time for that to occur in the four or five seconds, and [Marcus] would have seen it if it did occur. Similarly, neither [the appellant] nor [Mr Gellert] went to ground or moved substantively from their respective positions, or [Marcus] would have seen that and said so in his evidence. Now, I need to consider whether the possibility I've just identified as to [the appellant's] state of mind at that moment is a reasonable possibility. There is a much more likely possibility on the evidence, namely, that [the appellant] was angry, and he struck [Mr Gellert] in the neck with the sword immediately after [Marcus] looked away and before [Mr Gellert] did anything more. However, in the end, and mindful of his age and life history, and even though [the appellant] was also angry - I will just say that again. And even though [the appellant] was also angry, it is a reasonably possible conclusion that when he struck [Mr Gellert] with the sword, [the appellant] believed it was necessary to do so to defend himself. In other words, and as the law requires me to state it, I am not satisfied beyond reasonable doubt that [the appellant] did not believe that hitting [Mr Gellert] with the sword was necessary to defend himself from a harmful act by [Mr Gellert]. Now, that is not the end of the matter. I need to consider whether the State have rebutted any of the other three limbs of self-defence because they only have to rebut one. As to the second way I directed myself on earlier, I am satisfied beyond reasonable doubt that the State have rebutted that. I'm satisfied beyond reasonable doubt [the appellant], even as a 15-year-old teenager, having lived the life he had, did not have reasonable grounds for believing it was necessary to strike [Mr Gellert]. There were other options open to [the appellant], which a reasonable teenager in his position would have taken. He could have lowered the sword. He could have held [Mr Gellert] at arm's length with the sword, as his reach was longer. He could have run away. He did none of those things because although he may have had that belief I referred to that the strike was necessary to defend himself, he held it in circumstances where he was angry, aggressive and, I am satisfied beyond reasonable doubt, not going to back down. The reasonable teenager in [the appellant's] position is not an angry teenager motivated to fight. And even though [Mr Gellert] was a violent man who had just been violent with his mother and was angry as he walked towards [the appellant] with his knife in his hand, there is no evidential foundation that he was stupid, enraged or unconcerned for his own safety and likely to attack an angry teenager wielding a big sword. Objectively, the difference in weapons is important. Yes, [Mr Gellert] -- 18 of 35 -- [2026] WASCA 97 Page 19 should have run away when he saw [the appellant] coming after him with a sword. But having regard to all of those matters, I'm satisfied beyond reasonable doubt that there were no reasonable grounds for [the appellant] to believe that hitting [Mr Gellert] with a sword was necessary to defend himself from [Mr Gellert]. As to the third limb of self-defence, I'm satisfied the State have rebutted that, too. I'm satisfied beyond reasonable doubt that hitting [Mr Gellert] with a sword was not a reasonable response in the circumstances as [the appellant] believed them to be. I've just mentioned some of those things he could have done instead. The strike by [the appellant] was disproportionate to the threat he faced, even though [Mr Gellert] was advancing with a small knife. I'm well aware that it's difficult for a 15-year-old teenager like [the appellant] to precisely weigh his response. I recognise what the High Court said in [Zecevic v Director of Public Prosecutions (Vic) (1987) 162 CLR 645], and I should not impose unrealistic standards on an accused facing the threat of imminent assault who should not be expected to weigh the niceties of outcomes of different courses of action. I will say again, [the appellant] knew he was angry. That was his primary motivation. And striking with a sword to the neck, and the location of that injury was important, was entirely disproportionate. He didn't back away. He didn't strike the legs. He delivered a forceful blow with a sword to a very vulnerable part of the body. Finally, I'm satisfied beyond reasonable doubt that there were no reasonable grounds for [the appellant's] belief, that reasonably possible belief I identified earlier, in the circumstances as he believed them to be. That is for the same reasons I've already identified. And it follows that the State have rebutted self-defence beyond reasonable doubt, and it follows that the State have proved the charge beyond reasonable doubt, and [the appellant] is guilty. (emphasis added) Grounds of appeal 41 There are three grounds of appeal, they are as follows:35 GROUND 1 The verdict of guilty is unreasonable or cannot be supported having regard to the evidence, in that it was not open to exclude beyond reasonable doubt that the appellant acted in self-defence. 35 WAB 6. -- 19 of 35 -- [2026] WASCA 97 Page 20 GROUND 2 In finding that there had been no 'fracas or physical [contact]' between the appellant and [Mr Gellert] other than the single blow by the appellant with the sword, the trial judge: (a) made a material error of fact; (b) erred in law, or in fact and law, by making that finding where there was no evidence to support it and/or by reversing the onus of proof. GROUND 3 A substantial miscarriage of justice occurred as a consequence of the prosecutor's failure to call [Ms Francis]. Ground 1 - relevant legal principles 42 The principles applicable to the determination of a ground of appeal which alleges that the verdict is unreasonable or unsupported by the evidence are well known. The central question for determination is whether, upon the whole of the evidence, it was open to the trial judge to be satisfied beyond reasonable doubt that the appellant was guilty. This requires consideration of whether, on the whole of the evidence, the trial judge must, as distinct from might, have entertained a reasonable doubt about the appellant's guilt. The court must exercise its own independent judgment in this regard, and not be distracted in the case of a trial by judge alone by an analysis of the trial judge's reasons.36 43 In the present case, the specific question is whether it was open to the trial judge to be satisfied beyond reasonable doubt that the prosecution had excluded self-defence. Thus, the reasons that follow will be confined to that issue. 44 The elements of self-defence as provided for in s 248(4) of the Code are: 1. A subjective component that the accused believed that the actions constituting the alleged offence were necessary to defend the accused or another person from a harmful act. 36 Sturniolo v The State of Western Australia [2023] WASCA 147; Dansie v The Queen [2022] HCA 25; (2022) 274 CLR 651. -- 20 of 35 -- [2026] WASCA 97 Page 21 2. A mixed objective and subjective component that the accused's actions were a reasonable response by the accused in the circumstances as the accused believed them to be. 3. An objective component that there were reasonable grounds for the accused's beliefs as to the necessity to act in 1 and as to the circumstances in 2. 45 The accused bears the evidential onus in relation to self-defence.37 If met, the burden falls on the prosecution to negate the defence by excluding beyond reasonable doubt at least one of the elements referred to. The evidentiary burden is relatively low and does not necessarily require that the accused give evidence. It may be discharged by pointing to evidence in the prosecution case from which the facts necessary to support the defence can be inferred. In determining whether a defence is available on the evidence, the case should be viewed from the perspective that is most favourable to the accused. A trial judge must leave a defence to the jury if, at the close of the evidence, there is evidence which, taken at its highest in favour of the accused, could lead a reasonable jury, properly instructed, to have a reasonable doubt as to whether the State has negatived the defence.38 46 Whilst the evidential onus is a relatively low one, it is nonetheless real. In Heijne v The State of Western Australia, this court reiterated that the evidential onus does not impose any obligation on the accused to give or call evidence. The issue can be raised by evidence capable of giving rise to inferences. Importantly, however, the court clarified that '[self-defence] should not be left to the jury if its application would be purely speculative in the sense that it would lack foundation in the evidence'.39 Although Heijne was concerned with now repealed provisions dealing with self-defence, there is no reason to doubt the continued relevance of this statement. Further, in Hawke v The State of Western Australia, Mazza JA cautioned that, in deciding whether the evidential onus has been met, a judge must guard against speculation and the assumption of facts in favour of an accused where there are gaps in the evidence.40 47 In considering what evidence there is that may support a defence, it is important to consider what inferences can reasonably be drawn 37 Goodwyn v The State of Western Australia [2013] WASCA 141; (2013) 45 WAR 328 [96]. 38 Braysich v The Queen [2011] HCA 14; (2011) 243 CLR 434 [37] (French CJ, Crennan & Kiefel JJ); Hawke v The State of Western Australia [2017] WASCA 40 [106] (Buss P); Heijne v The State of Western Australia [2010] WASCA 86 [43] (Martin CJ). 39 Heijne [40] (Martin CJ). 40 Hawke [171]. -- 21 of 35 -- [2026] WASCA 97 Page 22 from that evidence. Inferential reasoning is often referred to in the context of circumstantial cases. A jury must exclude inferences consistent with innocence and be satisfied that the only reasonable inference is one of guilt, before they can return a verdict of guilty in a circumstantial case. In the context of the evidential onus required to raise a defence there is no requirement for the defence to establish that an inference favourable to the defence is the only one available. It is sufficient for this purpose if the inference is an inference that is reasonably available on the evidence. 48 An inference is a logical deduction drawn from the evidence. In Caswell v Powell Duffryn Associated Collieries Ltd, Lord Wright explained the essential difference between inferences and speculation:41 Inference must be carefully distinguished from conjecture or speculation. There can be no inference unless there are objective facts from which to infer the other facts which it is sought to establish. In some cases the other facts can be inferred with as much practical certainty as if they had been actually observed. In other cases the inference does not go beyond reasonable probability. But if there are no positive proved facts from which the inference can be made, the method of inference fails and what is left is mere speculation or conjecture. 49 Lord Wright's reasons were referenced by the High Court in R v Baden-Clay42 in considering whether an alternative inference was mere speculation or conjecture, rather than a hypothesis available on the evidence. The issue in that case was whether an alternative hypothesis, that the appellant had killed his wife without intending to cause serious harm to her, was reasonably open in circumstances where the appellant had given evidence that he had nothing to do with the death of his wife. In that context, the court said that for an inference to be reasonable, it must rest on something more than mere conjecture.43 50 The issue was recently considered by Thomson P in Puttick v The State of Western Australia,44 in which his Honour referred to the following reasons of Spiegelman CJ in Seltsam Pty Ltd v McGuiness:45 It is often difficult to distinguish between permissible inference and conjecture. Characterisation of a reasoning process as one or the other occurs on a continuum in which there is no bright line division. Nevertheless, the distinction exists. 41 Caswell v Powell Duffryn Associated Collieries Ltd [1940] AC 152, 170. 42 R v Baden-Clay [2016] HCA 35; (2016) 258 CLR 308 [55]. 43 Baden-Clay [47] citing Peacock v The King [1911] HCA 66; (1911) 13 CLR 619, 661. 44 Puttick v The State of Western Australia [2026] WASCA 52 [52]. 45 Seltsam Pty Ltd v McGuiness [2000] NSWCA 29; (2000) 49 NSWLR 262 [84] - [88]. -- 22 of 35 -- [2026] WASCA 97 Page 23 Lord MacMillan in Jones v Great Western Railway Co (1930) 144 LT 194, in the context of stating that a possibility that a negligent act caused injury was not enough, said (at 202): 'The dividing line between conjecture and inference is often a very difficult one to draw. A conjecture may be plausible, but is of no legal value, for its essence is that it is a mere guess. An inference in the legal sense, on the other hand, is a deduction from the evidence, and if it is a reasonable deduction it may have the validity of legal proof. The attribution of an occurrence to a cause is, I take it, always a matter of inference.' After referring to this passage, Sir Frederick Jordan in Carr v Baker (1936) 36 SR (NSW) 301 at 306 said: 'The existence of a fact may be inferred from other facts when those facts make it reasonably probable that it exists; if they go no further than to show that it is possible that it may exist, then its existence does not go beyond mere conjecture. Conjecture may range from barely possible to the quite possible.' Spiegelman CJ then referred to the passage from Caswell v Powell Duffryn Associated Collieries Ltd that has been quoted at [48]. 51 In Puttick, after quoting the above passage, Thomson P said:46 Of course, the comments made by Spigelman CJ concerned the difference between inference and conjecture in the context of positively proving causation on the balance of probabilities. Nonetheless, the exposition of the difference between what constitutes inference and conjecture is helpful to understand whether there is an inference available upon the evidence which needs to be excluded by a prosecution case beyond reasonable doubt. If there is no evidence to support the existence of an inference, nothing needs to be demonstrated to exclude the bare possibility of that inference. Put another way, a circumstantial case is not defeated because it is possible to articulate an alternative hypothesis, not grounded in the evidence, but which would be theoretically inconsistent with guilt. 52 In Puttick the prosecution sought to prove an element of a money laundering offence (that money was the proceeds of an offence) by excluding the possibility that the money was lawfully obtained. In that unusual context, members of the court differed as to whether a contention that lawfully obtained money was being laundered for tax evasion purposes could be dismissed as mere speculation.47 That difference in application does not affect the correctness of Thomson P's statement of principle in the passage just quoted. 46 Puttick [53]. 47 Puttick [140] - [141], [146] per Mitchell JA, Bydder J agreeing at [238], [241], Thomson P contra at [108]. -- 23 of 35 -- [2026] WASCA 97 Page 24 53 In Jones v Dunkel, the issue was whether an inference of negligence was available on the evidence.48 Although the case is, of course, usually referred to for other reasons, some attention was given to the difference between inferences drawn from proven facts as opposed to conjecture. Dixon CJ (who was in dissent in the outcome) said that the law49 does not authorise a court to choose between guesses, where the possibilities are not unlimited, on the ground that one guess seems more likely than another or others. The facts proved must form a reasonable basis for a definite conclusion affirmatively drawn of the truth of which the tribunal of fact may reasonably be satisfied. 54 The application of this distinction to defences is potentially complicated by the use of the phrase 'reasonable possibility' in many of the cases.50 This could be read as suggesting that a mere or bare possibility is enough. That issue was addressed by the High Court in R v Khazaal.51 55 In Khazaal, the appellant was convicted of making a document connected with assistance in a terrorist act contrary to s 101.5 of the Criminal Code (Cth). He did not give evidence but sought to rely on a statutory defence that the making of the document was not intended to facilitate assistance in a terrorist act. The appellant bore the evidential burden in relation to the defence, by reason of s 13.3(3) of the Criminal Code (Cth). Section 13.3(6) of the Criminal Code (Cth) defines an evidential burden as 'the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist'. French CJ said:52 The statutory collocation 'evidence that suggests a reasonable possibility' is not readily amenable to translation into other terms. But, applying the ordinary meaning of the words of the definition, it is sufficient for the disposition of the Crown's appeal that s 13.3(3), read with s 13.3(6), requires evidence that is at least capable of supporting the inference that the matter to which the evidential burden applies 'exists or does not exist'. This approach reflects the general law position with respect to the evidential burden. If no such inference is able to be drawn from the evidence there is no logical basis for saying that the evidence suggests that inference as a reasonable possibility. Evidence which is merely consistent with or not inconsistent with such a 48 Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298. 49 Jones (305) (Dixon CJ), see also (305) (Kitto J), (309 - 310) (Menzies J), (319) (Windeyer J). 50 See, for example, Thorns v The State of Western Australia [2022] WASCA 127 [162]. 51 R v Khazaal [2012] HCA 26; (2012) 246 CLR 601. 52 Khazaal [12] (French CJ). -- 24 of 35 -- [2026] WASCA 97 Page 25 possibility does not 'suggest' it. The interaction of the 'evidence' and the 'possibility' in such a case may be like that of ships passing in the night. 56 The plurality (Gummow, Crennan and Bell JJ) approached the issue differently, though they reached the same conclusion that the evidential burden had not been met:53 None of the evidence relied on by the respondent to discharge the evidential burden in respect of s 101.5(5) suggested a possibility that the respondent's making of the e-book was not intended to facilitate assistance in the terrorist act for which the e-book provided information and instructions. This renders it unnecessary to determine whether the phrase 'reasonable possibility', as it appears in s 13.3(6), excludes evidence which suggests no more than a 'mere possibility' or a 'bare possibility'. That question is better left until facts before this court require the question to be determined. 57 The fifth member of the court in Khazaal, Heydon J, concluded that the appellant had not met the evidential onus because, insofar as the appellant relied on evidence which lay outside the e-book, it was neutral and immaterial. So far as the evidence relied on came from the e-book, his Honour said that it was nullified by the balance of the e-book. Thus, none of this evidence supported a reasonable possibility that the appellant did not have the intention of facilitating a terrorist act.54 58 Although Khazaal was concerned with the terminology of the Criminal Code (Cth), there is no reason to think that the phrase 'reasonable possibility' as used in that statute has a different meaning to the general law. Whilst the plurality in Khazaal did not resolve whether a reasonable possibility excludes a mere or bare possibility, the use of the word reasonable in this context is a limiting word that strongly suggests something that is more than merely theoretical. We respectfully agree with French CJ that a reasonable possibility must be founded on evidence that is at least capable of supporting an inference that the matter to which the evidential burden applies exists or does not exist. Accordingly, a reasonable possibility that an accused acted in self-defence must be based on the evidence or on a positive inference drawn from the evidence that the facts relevant to self-defence exist. 59 The practical application of the distinction between a reasonable possibility supported by the evidence and speculation is illustrated by Sivaraja v The Queen,55 a New South Wales case that bears some 53 Khazaal [78] (Gummow, Crennan & Bell JJ). 54 Khazaal [110] - [111] (Heydon J). 55 Sivaraja v The Queen [2017] NSWCCA 236 (Meagher JA, R A Hulme & Beech-Jones JJ). -- 25 of 35 -- [2026] WASCA 97 Page 26 factual similarities to the present case. In Sivaraja, the appellant and others were convicted of wounding with intent to cause grievous bodily harm. The appellant sought to rely on self-defence on the basis that the victim had produced a knife during a confrontation, which resulted in injury to the victim. The appellant did not give evidence and there was no direct evidence to support the appellant's contention. The NSW Court of Criminal Appeal concluded that, even accepting that the victim was in possession of a knife, it was mere speculation to theorise that he produced it during the confrontation such that it resulted in the appellant forming the belief that it was necessary to assault the victim with a weapon. The surrounding circumstances, including the wound to the victim and that the appellant and his co-offenders had no injuries, did not assist in 'converting pure speculation about the applicant's acting in self-defence to evidence capable of raising a reasonable doubt about that matter'.56 60 Accordingly, if, on the available evidence, an event is no more likely to have occurred than to not have occurred, then it is not logically possible to draw an inference that it did occur. In such a scenario, the evidence does not allow a conclusion based on inductive reasoning to be made. The evidence may be consistent with the possibility of the event occurring, in the sense that it does not positively exclude it, but consistency is not enough for the drawing of an inference. There must be evidence from which it is possible to draw a logical conclusion that the alleged event occurred before it can be said that that event can be inferred. 61 In the context of s 248 of the Code, this means that, when considering whether it is reasonably possible that the appellant was acting in self-defence, it is necessary to decide that question in the circumstances established by the evidence. The circumstances are those matters of fact of which there is evidence, and the inferences that can be drawn from those facts. The prosecution has the onus of disproving self-defence where it is raised, but that does not require disproof of possibilities that are merely conjecture or speculation. 62 There is a practical reason that reinforces this conclusion. The purpose of an evidential burden is to ensure that the issues to be determined at a trial are properly identified. If the evidential burden is discharged, the onus falls on the prosecution to disprove self-defence beyond reasonable doubt. The prosecution can reasonably anticipate the need to rebut defences that are either directly raised or are capable 56 Sivaraja [145]. -- 26 of 35 -- [2026] WASCA 97 Page 27 of being inferred from the evidence. However, if the onus extends to the exclusion of every theoretical possibility the task of the prosecution will be onerous, if not impossible. Self-defence could be an issue in almost every case involving the use of violence, other than where it is specifically renounced. Predicting what possibilities may be raised by the defence in closing would be an exercise in guesswork, and adducing evidence to disprove such possibilities would be fraught with difficulty. In an attempt to disprove such possibilities, the prosecution may end up leading evidence that ultimately proves to be irrelevant. This scenario would also allow the accused to capitalise on gaps in the evidence, not merely to argue that the prosecution has not proved its case, but to expand the range of positive defences. Ground 1 - submissions 63 The appellant submits that he met the evidential burden to raise the defence of self-defence, and the onus was therefore on the prosecution to negative the defence by excluding at least one of its elements beyond reasonable doubt. The prosecutor took no issue that the evidential burden had been satisfied, and the trial judge proceeded on the basis that the prosecution bore the onus to negate the defence beyond reasonable doubt. 64 The appellant submits that, in circumstances where the prosecution led no direct evidence as to what happened at the precise moment of the blow, there was no direct evidence in the prosecution case of the critical moments of the altercation. At its highest, the prosecution case, in seeking to negate self-defence, rested upon the hypothesis that, within the five-second gap, the appellant struck Mr Gellert, without Mr Gellert having taken any aggressive action. The appellant submits that that factual hypothesis is not established by the evidence at trial, and, thus, the prosecution could not discharge its onus to disprove self-defence. 65 The appellant submits that a hypothesis involving physical aggression on the part of Mr Gellert in the five-second gap is made more likely by the evidence led of his previous instances of violence. Trial counsel for the appellant relied upon the propensity evidence to suggest that it was more likely that Mr Gellert behaved in a violent manner in the critical moments. 66 Further, the appellant submits that Mr Tufnell's evidence was incapable of acceptance as a proper foundation for an inference that the appellant had not acted in self-defence. Mr Tufnell's credibility and -- 27 of 35 -- [2026] WASCA 97 Page 28 reliability were significantly affected by the prior inconsistent statement on a material question. The prior inconsistent statement was not in relation to a peripheral matter. Rather, it went to a key moment at issue in the trial. The content of the inconsistent statement, that Mr Gellert had swung first, was irreconcilable with Mr Tufnell's evidence during examination-in-chief, that he had not seen a movement by Mr Gellert with the knife. 67 The respondent submits that the evidence only raised the possibility of self-defence on the basis that the appellant may have reacted to an apprehended, as opposed to an actual, assault. The appellant's argument on appeal relies entirely on an actual assault having occurred in the seconds that Mr Tufnell looked away. But the suggestion that there was an actual assault lacks any evidential foundation. 68 The respondent submits that, in any event, the trial judge was also satisfied beyond reasonable doubt that the appellant's action in striking Mr Gellert with a sword to the neck was disproportionate in the circumstances as the appellant believed them to be. The judge's reasoning in this regard is equally applicable to a scenario where Mr Gellert took some action that constituted an assault. Ground 1 - merits 69 In the present case, the elements of the offence were admitted and the appellant bore an evidential onus in relation to self-defence.57 The issue is what were the circumstances established by the evidence that gave rise to self-defence. That is, was consideration of self-defence limited to the circumstances described by Mr Tufnell, or did they include, as an inference drawn from that evidence, that Mr Gellert had lunged or struck out with the knife he was holding? It is important to give some consideration to what inferences were available. 70 At the hearing of the appeal, it was suggested that inferences in this regard can be contrasted with the inferential reasoning that applies to a circumstantial case. The suggestion was that a possibility open on the evidence was sufficient to justify a requirement that the prosecution disprove the defence beyond reasonable doubt. The implication was that if it was a possibility that Mr Gellert had lunged with the knife, that was enough, whether or not that possibility could be positively inferred from the evidence. 57 This is different to the circumstances in Puttick referred to in [52] above. -- 28 of 35 -- [2026] WASCA 97 Page 29 71 We are unable to accept that submission. A defence must have a foundation in the evidence. Mr Tufnell's evidence was the only basis on which self-defence could arise in this case. Accordingly, whether the appellant may have acted in self-defence must be assessed by reference to the facts directly established by that evidence together with any facts that may properly be inferred from them. It was not enough to suggest that, in the five seconds that Mr Tufnell looked away, it was possible that Mr Gellert had lunged with the knife. There was no evidence of facts from which it might be inferred that he had done so. The only available evidence was that, when last seen, Mr Gellert was holding the knife down by his side. The fact that he and the appellant were in close proximity and swearing at each other could not support an inference that Mr Gellert had lunged with the knife, when there was no evidence that such an act occurred. Nor does the fact that Mr Gellert had a propensity for violence mean that he would have acted in a particular way on this occasion. At most there was a speculative possibility, not grounded in the evidence, that Mr Gellert might have lunged at the appellant with a knife. 72 The appellant's contention can be tested in the following way. If Mr Tufnell had not given evidence, could the appellant have been convicted on the basis of his admissions and assuming that the blow with the sword was a willed act? He plainly could have. In these circumstances, could any suggestion of self-defence have been raised in the absence of some positive evidence that the appellant had grounds for believing that he needed to defend himself from a harmful act? The answer must be 'no'. To say that it is possible that Mr Gellert acted by lunging out with the knife is mere speculation. 73 The only basis upon which self-defence was open was on the existing evidence. The appellant's actions fell to be considered on the basis that Mr Gellert had moved towards him whilst holding a knife, but that the knife was held by his side. This occurred in circumstances where the appellant was holding a 1 m-long samurai sword, which, a short time earlier, he had been swinging around in the kitchen. When last observed, the appellant had raised the sword in a manner that appeared to Mr Tufnell to be in readiness to make a strike. Mr Gellert was injured by being hit to the rear of his neck by the sword. There was no suggestion of any injuries to the appellant. 74 It was plainly open on this evidence to conclude that whilst the appellant may have believed that his action was necessary in order to defend himself from a harmful act by Mr Gellert, there were no reasonable grounds for that belief, and the response was not a -- 29 of 35 -- [2026] WASCA 97 Page 30 reasonable one in the circumstances as the appellant believed them to be. The learned trial judge was not required to take into account the merely speculative possibility that Mr Gellert had lunged with his knife. 75 Mr Tufnell's evidence was the only evidential foundation for the contention that the appellant may have acted in self-defence. That limits the significance of Mr Tufnell's prior inconsistent statement. If that statement rendered his evidence unreliable, so that it had to be disregarded, the position would be analogous to that postulated at [71] above. Just as there would have been no evidential foundation for self-defence had Mr Tufnell not given evidence, there would be none if his evidence were wholly rejected as unreliable. 76 Having regard to the whole of the evidence, it was open to the trial judge to be satisfied beyond reasonable doubt that the appellant was guilty. Specifically, it was open to the trial judge to be satisfied beyond reasonable doubt that the prosecution had excluded self-defence. On our own independent assessment of the evidence, we are not left with a doubt that the appellant acted in self-defence. Further, any doubt that might arise from the prior inconsistent statement of Mr Tufnell is resolved by having regard to the advantage of the trial judge in having seen and heard the witness. 77 As ground 1 raised an important matter of principle, we would grant leave to appeal on that ground. However, the ground does not succeed. Ground 2 - submissions 78 The appellant submits that, in making a finding that there was no 'fracas or physical contact' between the appellant and Mr Gellert, other than the single blow with the sword, the trial judge was, in effect, making a finding that Mr Gellert had not raised the knife in his hand towards the appellant or taken a swing prior to the appellant's strike. The appellant submits that to make such a finding engages in speculation as to what occurred in the five seconds. This is said to be somewhat ironic in circumstances where his Honour had, immediately before making that finding, noted that he could not determine what had occurred in that five-second period. 79 The appellant submits that the finding is material because it impacted upon the trial judge's consideration of self-defence. By excluding the possibility of an aggressive act on the part of Mr Gellert -- 30 of 35 -- [2026] WASCA 97 Page 31 with the knife, the trial judge assessed self-defence in a context that was unfairly unfavourable to the appellant. 80 The respondent submits that it does not follow that because the prosecution bore the onus of disproving self-defence, it was required to negative every speculative possibility that might be imagined. In the present case, there was no evidence supporting the possibility that Mr Gellert initiated a physical assault. In those circumstances, the trial judge was correct to proceed on the basis that there was a reasonable possibility that the appellant may have acted to defend himself against a threatened assault, but that the possibility that a physical assault had occurred was mere speculation. Ground 2 - merits 81 When seen in context, it is apparent that his Honour's reference to there being no fracas or physical contact is a description of the broader circumstances in which the strike occurred. At the point Mr Tufnell looked away, the appellant had raised the sword to strike Mr Gellert. There was no suggestion of any physical contact (that is, an assault) or any fracas (that is, any physical pushing or shoving) at that point. To the contrary, the evidence was that they were more than an arm's length apart. This was a conclusion that was also supported by the appellant's lack of injuries and the fact that neither he nor Mr Gellert fell to the ground. 82 The appellant interprets the trial judge as making a finding that Mr Gellert did not act aggressively in the period that Mr Tufnell looked away. That is not what his Honour says, and it would be surprising if that is what he meant, given that the impugned words follow immediately after a passage in which his Honour says that he cannot speculate as to what occurred in the four or five seconds that Mr Tufnell looked away. Nor is there anything to suggest that a finding of that nature played any part in the trial judge's conclusions regarding self-defence. 83 This ground appears, at least in part, to be a corollary of ground 1, in that the appellant seeks to draw on the alleged negative finding to support the contention that the trial judge did not properly consider self-defence because he did not take into account the possibility that Mr Gellert had struck out or lunged with the knife. However, when his Honour's reasons are viewed as a whole, it is clear that he excluded the possibility of Mr Gellert having acted aggressively in the manner -- 31 of 35 -- [2026] WASCA 97 Page 32 described because it was speculative, not because he made a finding to the contrary. 84 In our view, ground 2 is not reasonably arguable, and leave in respect of it should be refused. Ground 3 - relevant legal principles 85 The prosecution should call all witnesses necessary to give a complete account of the events upon which the prosecution is based. Those witnesses will include eyewitnesses of any events which go to prove the elements of the offence. However, a prosecutor is not bound to call a witness, even an eyewitness, whose evidence is judged to be unreliable, untrustworthy or otherwise incapable of belief.58 A failure to call a witness who, in fairness, should be called by the prosecution may be insignificant in the context of the overall trial. A miscarriage of justice will only occur where the consequences of the failure so affect or permeate the trial as to warrant the conclusion that the fundamental right to a fair trial has been denied.59 86 The following propositions in relation to a convicted person's complaint on appeal about the failure of the prosecutor to call a particular person as a witness are well established:60 (a) The prosecutor alone bears the responsibility of deciding whether a person will be called as a witness for the State. (b) The prosecutor's decision not to call a particular person as a witness will only constitute a ground for setting aside a conviction if, when viewed against the conduct of the trial as a whole, the decision gives rise to a miscarriage of justice. (c) It is necessary, in determining whether a miscarriage of justice has occurred, to focus directly on the consequences, viewed objectively, that the failure to call the witness has had on the course of the trial and its outcome. (d) The critical question is not whether the prosecutor's decision constitutes misconduct, but whether in all the circumstances the verdict of guilty is unsafe or unsatisfactory. 58 Whitehorn v The Queen [1983] HCA 42; (1983) 152 CLR 657, 674 (Dawson J). 59 Whitehorn (664) (Deane J). 60 R v Apostilides [1984] HCA 38; (1984) 154 CLR 563, 575, 577 - 578; See also Jones v The State of Western Australia [2024] WASCA 115 [121]. -- 32 of 35 -- [2026] WASCA 97 Page 33 87 Misconduct by a prosecutor is not necessary in order for there to be a miscarriage of justice, though it will be rare for a miscarriage of justice to occur without there being misconduct. If the reasons that the witnesses have not been called are justified by the circumstances, those circumstances are likely to form a firm foundation for concluding that there has been no miscarriage of justice. Ground 3 - submissions 88 The appellant submits that there was a real possibility that Ms Francis could give evidence relevant to the determination of the self-defence issue. Although Ms Francis did not give a statement to the police, nor participate in a deposition hearing, there was information available in the form of a body-worn camera recording made at the scene. 89 The appellant provided a transcript of the relevant part of the body-worn camera footage. In that recording, Ms Francis said to a police officer, 'So youse gonna charge a minor over hitting the adult that was swinging at him? So Youse - nah but bro can I just explain that to you? [Mr Gellert] was swinging at him first. You're gonna charge a minor for defending himself'. The appellant submits that on the basis of this oral statement, the prosecutor should have called Ms Francis, and that the failure to do so resulted in a miscarriage of justice. 90 The respondent submits that Ms Francis had declined to be interviewed by police, or give a statement, and had not cooperated in the giving of a deposition. What she told police at the scene was not a statement made on oath; was not clearly an account of something that she had seen herself, rather than being based on hearsay; and was contradicted later in her interaction with the police when she denied having seen anything. The appellant's relationship with Ms Francis was also a relevant consideration. 91 The respondent submits that, in the circumstances, it was open to the prosecutor to conclude that Ms Francis should not be called as a witness for the prosecution. The prosecutor did not know what Ms Francis might say if she was called as a witness, and had every reason for believing that she would not be either a credible or reliable witness. -- 33 of 35 -- [2026] WASCA 97 Page 34 Ground 3 - the merits 92 It was not known, either at the trial or on appeal, what Ms Francis could say, if anything, that was relevant to the facts in issue. There was no witness statement or evidence on oath at a deposition hearing confirming that she could give relevant and admissible evidence. No application was made to adduce as additional evidence on the appeal any affidavit from Ms Francis setting out any evidence she could give. 93 The body-worn camera footage of an oral statement made at the scene is an insufficient basis for concluding that Ms Francis was a necessary witness. The statement was made by a mother in an apparent attempt to dissuade the police from charging her son. It is not apparent that what was said by Ms Francis represented things that she had seen, rather than things she had surmised or had been told by others. Further, she later said that she had seen nothing. 94 In the circumstances, there is no reason to think that the prosecutor engaged in any misconduct in declining to call Ms Francis. There were plainly very good reasons not to do so. The appellant does not suggest to the contrary. The fact that Ms Francis was also available to be called by the appellant is a relevant, though not determinative, consideration. It is difficult to see how the prosecutor's decision not to call Ms Francis resulted in unfairness to the appellant, when she could have been called as a defence witness and there was no reason to think that she would be unfavourable to the appellant. 95 Given that it is not known what evidence Ms Francis could give, the appellant faces an insurmountable hurdle in establishing that there has been a miscarriage of justice as a result of the prosecutor's failure to call her as a witness. It has not been established that, had she been called, she could have given relevant evidence or made any difference to the outcome of the trial. We are satisfied that the prosecutor's failure to call Ms Francis as a witness at the trial did not result in an unfair trial. 96 This ground has no reasonable prospect of succeeding, and leave in respect of it should be refused. Conclusion 97 Leave to appeal should be granted on ground 1 and refused on grounds 2 and 3. The appeal should be dismissed. -- 34 of 35 -- [2026] WASCA 97 Page 35 Orders 98 We would make the following orders: 1. Leave to appeal is granted on ground 1. 2. Leave to appeal is refused on grounds 2 and 3. 3. The appeal is dismissed. I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia. DC Associate to the Honourable President Thomson 20 JULY 2026 -- 35 of 35 --