CW v Regina

Court of Criminal Appeal (NSW)|2011-03-22|Before: Whealy JA, Hidden J, Johnson J, Hulme JJ, Kirby P, Newman JJ, Hall J

Judgment 1WHEALY JA: The appellant, CW, was charged on indictment that on or about 25 th November 2007 at Woolooware in the state of New South Wales he did murder Christopher Charles Leicester. In the alternative, he was charged on the indictment that he did feloniously slay the deceased. Pleas of not guilty were entered for each charge and a trial by jury commenced on Monday 6 th July 2009. On 16 th July 2009, the jury retired to consider its verdict. On 29 th July 2009, the jury returned with a verdict of guilty on the manslaughter count. 2On 30 th October 2009, Hall J sentenced the appellant to imprisonment for nine years with a non-parole period of six years, with the sentence to date from 24 th November 2007. The appellant has appealed his conviction and seeks leave to appeal against his sentence. The sole ground of the conviction appeal is that the verdict of the jury was unreasonable and cannot be supported on the evidence. There are two grounds to the sentence appeal, assuming leave is granted. These are, first, that the appellant is entitled to a justifiable sense of grievance on the basis of the more lenient sentences imposed on the co-offenders, DGP and PB. Secondly, that the total sentence imposed was manifestly excessive.

An overview of the proceedings 3Shortly, I shall, with reference to the evidence, briefly summarise the overall nature of the Crown case and the case presented on behalf of the appellant at trial. Before doing so, it may be useful if I make some brief reference to the course of the trial and the proceedings relating to the co-offenders. 4The murder charge against the appellant was posited on an alternative basis. First, it was the Crown case that the appellant murdered the deceased by carrying out an act with an intent to inflict grievous bodily harm. Alternatively, the Crown relied upon a joint criminal enterprise involving the appellant, DGP and PB. Broadly speaking, all three participants in the joint criminal enterprise were involved in a fracas with the deceased in the course of which he was punched and kicked, thereby sustaining the injuries that led to his death. It was not the Crown case that any kicks administered by the appellant inflicted fatal injuries, rather it was that they were caused by the punches and kicks inflicted by DGP. By contrast, the manslaughter charge was posited upon the context of an alleged joint criminal enterprise based on an understanding between the participants that there would be an assault perpetrated upon the deceased by applying physical force to his person. In the course of carrying out that agreement, the participants, did an act or acts which was or were unlawful and dangerous and which, in fact, caused the death of the deceased. 5Put simply, it was the Crown case that the appellant, along with the two other young men, was involved in an assault that caused the death of the deceased. The medical evidence was that the deceased had died from blunt force head injury. On both counts in the indictment, it was the Crown case that the appellant was involved in a spontaneous joint criminal enterprise and an unlawful and dangerous act which caused the death of the deceased. It was the appellant's case throughout that he did not participate in the assault on the deceased. He gave evidence at trial and maintained that at all times during the assault, he tried to prevent the other two young men from injuring the deceased. 6I have earlier pointed out that the trial relating to the appellant commenced on 6 th July 2009. The co-offenders had each pleaded guilty to the alternative count of manslaughter on 30 th June 2009. The plea, in each case, was accepted by the Crown in full satisfaction of the indictment. DGP and PB had first offered to plead guilty to the manslaughter offence on the final day of the committal hearing on 3 rd December 2008. Their sentence proceedings were heard concurrently on 18 th September 2009 and his Honour pronounced sentence on 30 th October 2009, some fifteen minutes before he commenced the imposition of sentence on the appellant. 7An Agreed Statement of Facts was tendered for the purpose of the joint sentencing hearing involving the two co-offenders. The Agreed Statement of Facts recited that DGP had punched the deceased causing him to fall to the ground and, while he was on the ground, kicked him once to the head. PB was said to have been involved in aggressive vocal remonstration with the deceased prior to DGP punching him. At the same time, PB had pushed the deceased who in turn pushed PB back before being struck by DGP. 8In relation to each plea of guilty, the trial judge allowed a discount of 20 percent and found special circumstances in terms of s 44(2) of the Crimes (Sentencing Procedure) Act 1999 . 9DGP was sentenced to a non-parole period of five years with a parole period of three years. PB was sentenced to a non-parole period of three years and a parole period of two years. His Honour, mindful that each offender had now attained the age of eighteen years, gave favourable consideration to a request that each offender serve the whole of the term of sentence of imprisonment as a juvenile offender. Orders to this effect were made pursuant to s 19(3) of the Children (Criminal Proceedings) Act 1987 . 10Shortly after the imposition of these sentences, his Honour delivered a separate decision dealing with the sentencing of the appellant. His Honour's remarks on sentence first set out a number of factual matters necessary for the sentencing process. It is convenient to set these out in full:- (1) Factual matters 7 The evidence called in the Crown case established that the offence occurred shortly after 11.00 pm on 24 November 2007. 8 The Crown case in relation to the alternative count was brought upon the basis that the offender was guilty of the offence of manslaughter by an unlawful and dangerous act. The Crown alleged that he was a party to a joint criminal enterprise. 9 It was made clear in the opening address for the Crown that the Crown case was that the offender participated in a joint criminal enterprise which was said to have been spontaneous, in that there was no evidence that there had been any pre-planning. 10 The Crown called evidence from a number of persons who were present at Woolooware Oval on the evening in question. 11 The offender, CW, was the driver of a vehicle. He and others, including his co-offenders, drove to Woolooware Oval. When he arrived there, his two co-offenders ran ahead onto the oval. One of their friends, Mr Taylor Martin, and the offender, CW, soon after got out of the car. CW then walked across the oval. 12 The Crown called a number of witnesses to establish the events concerning the particular circumstances of the assaults that took place. One witness, Ms Emileen Anderson, recalled seeing Mr Leicester lying on the ground. She jumped onto the co-offender, DGP, in an apparent attempt to stop him from continuing the attack. They both fell to the ground. She said she did it because she thought that DGP was going to attack Mr Leicester. She said she saw DGP kick Mr Leicester once on the ground. Her evidence was that she knew the offender, CW, before the evening of 24 November 2007. She said she recalled when Mr Leicester was on the ground and the offenders were walking away, the offender, CW, said, "Stay on the ground, it's where you belong" , or something along those lines. 13 Ms Sarah Allen was called by the Crown. She said that, as she walked closer to where Mr Leicester was lying on the ground, she saw:- "... five boys, silhouettes of boys, men, standing over him. They were kicking around his hip and up around his neck as well, or up around his shoulder blade. Because he was rolling over trying to get away from them. And then after that, as I started walking a bit closer, I saw a man a young man came in and kick him in the neck, around the neck and head area." 14 She then gave a description of the person she saw kick Mr Leicester. She said that she witnessed three kicks delivered by that person. On the last kick she said "I heard a loud crack" . 15 When asked what happened to Mr Leicester, she said:- "I run over and when I got there, first of all there was a girl leaning over him, trying to push all the guys away. And when I knelt down to, you know, see if his heart was beating, and I knelt down and then the guy with, like the same clothing, the guy that kicked him, came up behind me over my shoulder and started yelling at him." 16 Ms Allen said that she could not recall what he had said. 17 The offender's account in evidence was to the effect that, not only did he not kick or assault Mr Leicester, but that he, in fact, grabbed his co-offender, DGP, and pulled him back and away from Mr Leicester. He said in evidence that he did not touch, punch or kick Mr Leicester. 18 Mr Andrew Lord, who was also called by the Crown, said that he heard screaming and he looked over and saw Mr Leicester fall. He was then about 20 metres away from him. He saw Mr Leicester on the ground and shaking. His evidence was that he saw three persons involved in assaulting him. He provided descriptions of the assailants in his evidence. The Crown put to the jury that the three persons he saw were, in fact, the offender, CW, and his two co-offenders. The Crown put to the jury that they would reject the offender's account that he was, in effect, acting as "peace-maker" , that they would not accept CW's account and that they may consider that the only persons who were trying to stop the fight were the two young women including, in particular, Ms Anderson. 19 It is clear from the jury's verdict that they rejected CW's evidence and accepted that given by the Crown witnesses, in particular, the two women I have referred to. I will return to the significance of the jury's verdict shortly. 11His Honour then considered the subjective circumstances of the offender. He noted that the offender was sixteen years of age at the date of the offence. He noted the evidence of good character, including a body of favourable evidence regarding the appellant's family and his upbringing. He recited the emergence of a number of behavioural problems exhibited by the appellant in about 2007. These resulted in concerns as to the likely continuation of his schooling. His Honour also noted favourable material from the Department of Justice as to the appellant's progress within the juvenile justice system. 12The trial judge then made a number of findings relating to the objective circumstances of the offence and, in particular, the appellant's participation in the offence. Once again, it is appropriate to set out these findings in full:- 52 It was clear from the verdict, as I have previously stated, that the jury accepted the evidence given by Ms Anderson and accepted the evidence given by Ms Allen and that of Mr Lord and that the jury rejected the evidence of the offender. 53 It is implicit in the jury's verdict, accordingly, that they did find beyond reasonable doubt that the offender, CW, kicked Mr Leicester whilst he lay on the ground in a seriously injured condition, that is, after he had been punched and kicked by DGP. There is no reason to accept that the jury did not accept Ms Allen's evidence to the effect that Mr Leicester was kicked three times, including at least once to the head/neck region, as described in evidence. 54 The evidence plainly established a most serious assault by the offender, CW, in the joint criminal enterprise in question. The objective seriousness of that offence is marked out, in particular, by the fact that Mr Leicester was in an entirely defenceless and highly vulnerable position from the outset and more so once he had been injured and knocked to the ground by the offender, DGP. Additionally, the force and the multiplicity of the attacks (including to the victim's head/neck region) increased the gravity CW's the offending behaviour. 55 It is clear from the evidence, and I so find, that the level of violence arising from the offender CW's actions was of a high order. His actions in kicking Mr Leicester were severe and ferocious and were capable of, and did in fact inflict, significant physical injury on Mr Leicester. It is more than apparent that, in so acting, with Mr Leicester lying on the ground already injured, the offender displayed a level of callousness and cowardice that must be abhorred in any civilised society. The trial judge then made some general observations regarding the appropriate principles to be applied where manslaughter had been found, especially those relating to manslaughter by unlawful and dangerous act. His Honour also thoroughly and comprehensively enunciated the general principles that he was required to take into account in the sentencing exercise. He then gave further consideration to the level of participation in the joint criminal enterprise leading to the death of the deceased. His Honour acknowledged that the determination of the role that each offender plays in an offence of manslaughter based on a joint criminal enterprise, was crucial to assessing the individual culpability of each offender. In that regard, his Honour made reference once again to the conclusions he had already reached, based on the evidence at trial. 13Finally, his Honour gave careful consideration to the principles involved in sentencing a juvenile offender. In that regard, his Honour, however, concluded:- The present case is another instance of an innocent citizen being set upon, in entirely unprovoked circumstances, and subjected to a high level of explosive violence by young males, in some cases, acting together in a joint criminal enterprise. In cases such as this, there is a need in sentencing for there to be a proper accounting for all relevant factors and a sentence that reflects them. General deterrence is one such factor. 14The trial judge found special circumstances so as to justify a variation to the prescribed statutory ratio of non-parole to parole periods. He referred to the discounts which had been allowed to the two co-offenders but noted that this was not available in the case of the appellant as he had been convicted at trial. 15His Honour then pronounced the sentence to which I have made reference at the commencement of this decision, namely the imposition of a non-parole period of six years, together with a parole period of three years. An order was made that the appellant serve the whole of his sentence of imprisonment as a juvenile offender.

A more detailed analysis of the Crown case 16As I have said, the nub of the Crown case was an allegation that the accused had joined in with two other men to inflict injury on a person whom they believed had been responsible for being antagonistic towards PB. The evidence in the trial involved a close analysis of the movements of a number of people on the night in question. Their movements essentially revolved around the adjacent suburbs of Cronulla and Woolooware. It is convenient to start with an examination of the evidence contained in a statement of evidence provided by Jesse Harrison. This young man was unavailable to give evidence at trial but his statement and evidence at committal was read to the jury. In short, Harrison said that on 24 th November 2007, he was told by PB that there was to be a party that night at Woolooware. (From later evidence in the trial, it seems that this was an after-graduation party for a young person who apparently did not mind all and sundry turning up to join in the celebrations). Harrison went home and changed for the party. He and another friend walked to Cronulla Mall and saw a large group of teenagers hanging around the shopping area. Once again, Harrison ran into PB who was with a number of other friends, including Taylor Martin and DGP. It is important to note that from this statement there is a description of the clothes that were being worn by some of his friends. PB, for example, was wearing short shorts, a yellow shirt and a pair of Converse runners. There was talk of going to the Woolooware party and the group walked to Cronulla Station so that they could catch the train to the nearby suburb. There the group ran into the appellant. Harrison said the appellant was wearing denim jeans and a striped collared shirt. The appellant said he had a car and could take some people to the party. 17In any event, Harrison, PB and Taylor Martin caught the train to Woolooware Station and, it seems, arranged to meet the appellant when they arrived at Woolooware. Upon arrival at the station, the group walked over the railway bridge along with about fifty other young people. Harrison said that just over the bridge he saw "a young drunk guy swearing at all the kids going past. He was about eighteen years old with light skin and a brown shirt on. He was unbuttoning his shirt and taking it off. PB looked angry and he and other man were swearing and exchanging angry words". (Later evidence in the trial indicated that there had been some earlier altercation in the train and PB had been "picked on" by a group of people including the young man with the brown shirt). Harrison said that in the area near the railway bridge, PB and the other man were yelling at each other "from about twenty metres apart". At that point the appellant drove up in a car with DGP in the front passenger seat. Harrison, PB and Taylor Martin jumped into the vehicle. Harrison pointed out the man who had his shirt off and he told the appellant that "this fellow had been having an argument with PB". 18Harrison said that, although the appellant was supposed to drive to the party, he pulled over adjacent to Woolooware Oval, near the second entrance. PB and DGP ran ahead. Taylor got out of the car. Harrison and the appellant sat in the car for about a minute or less and then the appellant left the car and slowly walked over to "the fight". Harrison said he stayed at the entrance to the oval just watching. It was a dark night and although there was some lighting, it was difficult to see. Shortly, Harrison said, everyone came running back to the car, jumped in "and that is when they left". 19Harrison said that he could not see much when they had parked at the entrance to the oval. He could only see a whole bunch of people in the group having a fight, punching "and stuff". He could not see where DGP or PB or the appellant were. He could hear them yelling but he did not hear the words. He did not see a person lying on the ground and he did not see any punches thrown. He thought there were about twenty people out in the oval. 20Harrison said that when they were back in the car, everyone was "bragging about what happened". DGP was saying "how he hit him and stuff". PB said nothing at the time but later on got scared and "said he kicked him". The appellant did not say much and Mr Harrison assumed he did not do anything. DGP said, "the dude was a smart arse and I hit him". The appellant did not say anything about the assault. 21The appellant then drove to the party with Harrison, DGP, PB and Taylor Martin in the car. Harrison could not recall any further discussion about the incident taking place. 22The jury, as I have said, were also read a portion of the cross-examination of Mr Harrison at the committal. He agreed he had provided a statement to the police on 28 th November 2007. At paragraph 24 of the statement, Mr Harrison said the following in relation to the conversation in the car after they drove away from the oval:- PB and Taylor said, 'DGP smashed him, you hit him man, it was a king hit'. They continued about this for a while. DGP said, 'He shouldn't have been a smartarse and stuff like that'. I said, 'What did you do, Braz?' CW said, 'Nothing. DGP smashed him'. I said, 'Braz, drop me off at the party'. CW drove to the party. The party was around the corner. I think it was in Church Street. Everyone got out of the car. DGP began to walk towards the party. 23Harrison agreed that night the appellant had been wearing an earring in his left ear, denim jeans and a blue polo shirt with white stripes going across. Harrison's statement, if accepted, made it clear that he was nowhere near the fracas in the oval at the time the deceased was punched and kicked. 24Taylor Martin gave evidence at the trial. In general terms, his evidence confirmed the detail Harrison have given about the events leading up to the arrival at Woolooware Station. He did not give any evidence about the disagreement between PB and the other man at the station. He confirmed, however, that he had accepted a lift from the appellant near the station and that PB, DGP and Jesse Harrison were also in the car. He could remember there was an argument but not what was said. He said they drove to the oval and stopped half way down it. According to his evidence, he, PB, DGP and the appellant walked over to the entrance to the oval while Harrison stayed at the gate. He had difficulty recalling the events of the night. He said there was an argument and people were yelling at each other. He saw DGP hit the deceased. He thought PB was standing somewhere with him, but he could not recall where the appellant was standing. He said that he saw DGP punch the deceased with his right hand and the deceased fell to the ground. DGP kicked the deceased and was then tackled by a young woman whose name was Emileen Anderson. He was pretty sure DGP went to the ground in the tackle. Everyone was crowding around. The appellant was about a metre away from the deceased at the time but Martin did not see the appellant kick him. 25Jackson Parkes was a young man who was at Cronulla Station with some friends about 11:00pm on 24 th November 2007. He met the deceased and told him about the party at Woolooware. He did not know the deceased previously. The deceased said he wanted to come to the party so the group boarded a train to Woolooware together. When they left the train, Parkes saw a group of males who he had noticed earlier that evening drinking and mucking around at Cronulla Mall. One of them was a "chubby male of Aboriginal appearance" with rat's tail hair and bleached blonde patches. He was wearing a white and black hooded jumper, running shoes and running shorts. Parkes had seen him around lots of time and knew him as DGP. While he was talking to the deceased, Parkes saw a grey plumber's utility and a cream sedan pull into Swan Street near Woolooware train station. Three or four fellows jumped into the sedan, including DGP, and it drove off. Two guys, he said, ran chasing after the car yelling and swearing but he could not make out what they were saying. 26Parkes and the deceased made their way across the Kingsway, chatting, and walked towards Woolooware Oval. Just before they reached the oval, the cream sedan came from behind them and drove past them. DGP was hanging out of the window yelling out abuse with his fingers up. Parkes could not make out who the abuse was directed at. There was a group walking in front of them and a group behind them, so it could have been directed "at anybody". Quite clearly, on the evidence given by Parkes, the deceased was not the person who had abused PB, although the youths in the cream sedan thought he was. 27The group of friends that Mr Parkes had been with earlier in the night were walking about twenty metres behind him and the deceased. The two men walked through the turnstile entrance to the oval. He said:- We walked into the oval, only about four or five metres into the oval, and I looked to my right side - Chris is on my right, and I looked to the right side and there was a group of five males walking towards us looking pretty aggressive. 28Parkes said the males had their chests out and were saying things like, "What was that shit you said at us? Are you trying to start shit?" Parkes put his hands up and walked back saying, "What's going on?" The deceased also took a couple of steps back. Then the deceased "sort of stepped forward" not aggressive at all, and "tried to talk it out with them so it wouldn't start a fight". 29Parkes said the lighting on the oval was not very good. One of the males was trying to stand chest-to-chest with the deceased. Mr Parkes later recognised him at the committal hearing and heard his name was PB. PB was standing about two metres away from Parkes that evening. He was wearing athletic shoes, with jeans and a shirt. He had a blonde stripe down the middle of his head. He said that after PB stood close to Chris, DGP ran up, lifted his fist from his waist and hit the deceased hard on the chin with his fist. The deceased had his head whipped back "pretty hard" and took a couple of steps back and shook his head. Parkes was yelling out for the deceased to run away. Before he could finish what he was saying, DGP ran up again and punched the deceased square in the face. This blow knocked him to the ground and it appeared that he was rendered unconscious. After the deceased fell to the ground, Parkes turned away because it was making him sick and there was nothing he could do. So he ran out of the gates to find help. As he turned away, all he could hear was some loud "thud noises" which sounded like they were kicking him. Parkes heard a really loud snap noise and the end of it all, which at that time he thought was the deceased's neck breaking. He heard some girls screaming and, in particular, one female voice screaming, "Stop it, stop it". 30Parkes ran out of the gate and told an older man he saw that his mate was in there "getting bashed for no reason". He looked over and saw that all the young men had gone. It all happened "really fast and then the guys were not there anymore". Parkes saw the appellant in court but did not recognise him from that night. 31Emileen Anderson was a young girl, about fifteen years old in November 2007. As others did, she arrived at Woolooware Station that evening, and walked to and across Woolooware Oval. There were, she said, a fair few people around, mostly local people whom she knew. 32As she was walking she heard someone behind her yell out, "Who was the person yelling stuff out to the car?" She believed this was PB. She said he was wearing shorts and a short-sleeved top. He was a shorter boy with olive skin and she knew him to be part Aboriginal. Someone else said, "Who was the person who was driving the car?" PB then said, "It was me. What are you going to do about it?" Miss Anderson said she was standing a couple of metres away from PB at the time. He, in turn, was about six to eight metres away from the turnstile entrance. Miss Anderson did not know the person he was talking to. PB went up to him and pushed him in the chest. She said there were a lot of people around at the time. DGP was there. She described him as about five foot eight to five foot nine tall, Aboriginal appearance, fat built, short black hair plaited in a rat's tail. He had at least one ear pierced with a diamond earring. DGP appeared to be angry. Miss Anderson grabbed DGP from behind and tried to hold him back as she thought he was going to attack the other boy. She put her foot around the front of both his feet and they both fell to the ground. When she got up she saw the boy PB had pushed was now on the ground. She saw DGP get up and run two or three metres and kick the boy in the head while he was lying on the ground. She only saw DGP kick him once. She started screaming. 33Miss Anderson knew the appellant. She saw the appellant there before she saw DGP kick the boy on the ground. As they walked away, she heard the appellant say, "Stay on the ground, it's where you belong" or something along those lines. Miss Anderson did not see the boy move after he fell to the ground. When the appellant was walking away, she was pretty sure he was by himself but walking off in the same direction the others were going. Miss Anderson went to try and help the boy on the ground. About ten minutes later the ambulance arrived and then she spoke to the police. 34About fifteen or twenty minutes after she saw the boy being kicked, she received a call on her mobile phone. It was the appellant and he said, "Emileen, where are you?" She said, "I'm still at the oval where this boy is. I can't believe you've done this to him." She was angry when she spoke to the appellant over the phone. According to her, he replied, "That serves him right for being a smart arse to PB". The appellant also said, "It wasn't me, I didn't have anything to do with it. I didn't touch him". She thought it was just after midnight when she received this call. In her cross-examination, she agreed that she did not see PB do anything other than push the deceased in the chest earlier. She confirmed that she'd seen DGP kick the deceased to the head with his right foot, although there was only the one kick. She did not see the appellant punch or kick the deceased. 35Sarah Allen was aged nineteen years at the time of the trial. She had had a number of drinks at home with her boyfriend and friends before catching the train from Woolooware to Cronulla. It was there that she and her boyfriend heard about the party and decided to catch the train back to Woolooware. They arrived there about 11:00pm or a little bit later. They took a shortcut through Woolooware Oval. Miss Allen was walking with her cousin, Kristen, and her boyfriend was walking ahead of her with a group of his friends. There were about four groups of people altogether and she was walking in the third group. They came through the turnstile entrance and were walking across the ground when she heard some male voices arguing about ten metres behind her. There was a little bit of lighting from the side of the oval near where they entered, but she could not recall precisely the source of the lighting. 36She turned around and walked slowly back in the direction of the turnstile towards where the arguments were emanating. She saw a guy lying on the ground on his back about six or seven metres away. There were a group of about ten to fifteen people standing around him in a horseshoe pattern, with an open end towards her, so none of the people were blocking her view of him. As she got closer, she could see about five silhouettes of boys standing over him. They were kicking him around his hip and up around his shoulder area, because he was rolling over, trying to get away from them. As she walked a bit closer, she saw a young man come in and kick him to the left side of his neck, although she could not be one hundred percent sure if the kick was to his neck. She saw this person kick the deceased three times and on the last kick she heard a loud crack. The person that kicked the man on the ground was quite a large build "with dark skin, wearing a white Bonds-type shirt and like jeans". He was about five foot nine tall and had a diamond-type earring. When asked, she said she believed he had a diamond-type earring in each ear. 37Miss Allen heard a girl screaming and when she got there the girl was leaning over the man on the ground trying to push all the guys away. Miss Allen tried to see if his heart was beating and the guy that kicked him came up behind her and starting yelling at him over her shoulder. She was unable to recall what words he said. Miss Allen used her mobile phone to call triple 0, and the police arrived some time later. 38Miss Allen was cross-examined by the appellant's counsel. Although it was put to her that she may have been affected by alcohol that night, she said she did not feel too affected by alcohol at all. She "felt quite fine". 39Miss Allen agreed that while there was lighting coming from somewhere, she could only see the silhouette of the boys near the boy on the ground. She agreed that when she was ten metres away she could not really identify anyone. She saw a punch take place but could not see who was punched. It looked like a person may have fallen but there was a crowd of people and at that stage she could not see anybody's features. Miss Allen agreed she saw about five people standing close to the deceased and there were about three people kicking him. She agreed she had never seen the man before who kicked the deceased three times. She agreed when she saw the man kicking the deceased, she could not see his face, but she could see what he was wearing. She formed the impression of the person who did the kicking from his clothing and physique. It was afterwards, when she was holding the hand of the deceased, that she saw the earrings. She said the main impression was from what he was wearing, and then "from when he came over and starting yelling at the deceased". In cross-examination the following emerged:- Question: You go to the injured person on the ground and you are rendering assistance? Answer: Yes. Question: You look up and there you see a person who resembles the one you saw before. Answer: Yes. Question: From that impression, you conclude it is the same person: is that fair? Answer: The main impression I guess was what he was wearing, first, see. The fact he came over and starting yelling and the man on the ground again. Question: They're the two reasons you thought it was the same man? Answer: Yes. Question: It wasn't because you positively identified him? Answer: No. Question: As being the same man? Answer: No. Question: Is that right? Answer: I wouldn't say that. Question: You see, if there were two men there of similar size for example, similar physique and colouring, you are not able to tell one from the other from what you saw, are you? Answer: Well, yes. But as I said, I assume it would be him. 40Earlier in her evidence-in-chief, she had been asked what happened when she reached the young man who was lying on the ground. She replied:- I run over and when I got there, first of all there was a girl leaning over him trying to push all the guys away. And when I knelt down to, you know, see if his heart was beating, and I knelt down and then the guy with, like the same clothing, the guy that kicked him, came up behind me over my shoulder and starting yelling at him. 41It was the Crown case that although Miss Allen could not recall the words which were yelled at the deceased while he was on the ground, that this in fact was the occasion described by Miss Anderson who said that the appellant, after she had intervened and the assault was over, said to the deceased, "Stay on the ground, it's where you belong", or "something along those lines". 42Miss Allen was re-examined by the prosecutor following the answers given that I have referred to above. The re-examination was as follows: Question: Just in relation to that, the person who you first saw, you described him as wearing jeans; is that right? Answer: Yes. Question: And a shirt, a t-shirt? Answer: Yes. Question: A white t-shirt? Answer: Yes. Question: And he had dark skin? Answer: Yes. Question: Is that right? And he was solid build? Answer: Yes. Question: Now the person that you saw when you were trying to render assistance to this man on the ground? Answer: Yes. Question: What was that person wearing? Answer: A white Bond-like t-shirt, jeans, same build; dark skin and earrings. 43There were a number of other witnesses called who were present at the oval on the evening in question. It is not necessary to recite the evidence given by all of them. However, references were made during submissions to several of these persons and their evidence. I will briefly provide a synopsis of the evidence of those persons. 44Kieran Stuart-Watt was a fifteen year old boy who had caught the train from Cronulla to Woolooware that night. He was on the oval when he heard heated words exchanged between groups of people. He said this incident occurred about ten metres away from the turnstile. A man was punched in the side of his face. The person who he saw giving the punch was a bigger person (than the person hit) wearing a black-hooded jumper over his head and about five foot eleven tall. He did not get closer than twenty metres to the man who had been punched. He ran about fifty metres away from the incident and when he looked back he saw two people kick the man on the ground. One of them was a lot smaller than the first bloke. He believed the second person kicking the deceased was the bigger person who had punched him in the first place. He heard a loud cracking sound and then a couple of the girls in the group started screaming. Mr Stuart-Watt only saw the smaller guy kick him once. There was a group of people surrounding the incident. Mr Stuart-Watt saw the deceased being kicked a few times - maybe three times. 45In cross-examination, Mr Stuart-Watt agreed that the bigger man was the one who punched the deceased and knocked him to the ground. Both of the men kicked him but it was when the bigger man kicked the deceased that Mr Stuart-Watt heard the loud cracking sound. He agreed the bigger guy was wearing a black jumper and a pair of white slip-on loafers. He agreed that there was no doubt in his mind that he only saw two people kicking the deceased and only one person punching. Mr Stuart-Watt agreed the man who did "the hard kick" was Aboriginal, not Maori. 46Jay Sulway was in Woolooware Oval that night and was about three quarters of the way across when he heard yelling. He turned back and saw DGP, who he had known for three or four years, about fifty metres away. He said the lighting on the oval was "pretty dark". When he turned around he saw what appeared to be DGP throwing a punch and "hitting a guy in the face". He saw DGP throw a second punch and the guy fell backward to the ground. He heard a girl scream, "Stop, stop", and he knew that girl was Emileen Anderson. He saw another guy, PB, kick at the deceased but from where it was he looked like his kick had missed and then PB fell over. After PB fell to the ground, Mr Sulway said he saw the appellant "sort of picking him up off the ground". 47Ta-Leah Moran was sixteen years old at the time of the incident. She was planning to go to the after-party being held at Woolooware. It was being held by some students from St Vincent's High School following graduation. She said she saw the appellant's car pulled over by the side of the road next to the oval. "The people in the car jumped out and ran onto the oval." She did not recognise any of them because she was across the road, about two hundred to three hundred metres away at the time. She did not witness the incidents in the oval, but saw a person lying on the ground with people surrounding him some time later. 48Miss Moran walked to the party. She saw DGP there and he told her that he had "got into a fight". She described him as wearing a green t-shirt, three-quarter pants, she said he was Aboriginal in appearance and "chubby". Later that night or early the next morning, she had a further conversation with DGP. The latter began to cry and said, "I was only sticking up for a mate. I only punched him once and kicked him". Miss Moran said to PB, "What happened?" He told her that he was on the train and the guy "started at" him. He said he was then in the car with the appellant and DGP. They saw the guy on the oval so they walked up to him. He said that he pushed the man and then went to hit him but "Emily pulled me down". 49Matthew Boulton did not witness the incident at the oval, however he saw the group earlier in the evening and gave a description of the clothing the appellant had been wearing that evening. He said the appellant was driving a Holden four-door sedan and was wearing a blue or white coloured shirt, jeans and white shoes. He said PB was wearing a yellow shirt with a white shirt underneath, brown cargo style shorts and Converse shoes. DGP was wearing a white shirt, olive shorts and white shoes. 50Andrew Beatriz had been driving his father's Ford utility that night. This was a business van which was fitted out with conduit pipes and ladders. Beatriz volunteered to drive people around that night because he was not drinking. About 7:00pm he had seen PB, DGP, Taylor Martin and the appellant at Matthew Boulton's place. He gave a description of the clothes the men were wearing as well. He said that PB had a fluro-yellow top, cargo-type shorts, white Converse shoes. He was of thin build, short brown hair with a blonde streak into a rat's tail. DGP had a solid build, was of Aboriginal appearance and was wearing track pants, a black and grey hooded top, white Nike joggers and had a diamond earring in his left ear. The appellant had a solid build, was wearing a black tracksuit, a white top, white and black slip-on shoes and pierced ears with diamonds in them. 51At about 11:00pm he had walked towards Cronulla Station and there he saw the appellant and others walking back to their cars. Beatriz took Luke and Jarred with him and drove past DGP, PB and Taylor Martin. They wanted a lift but Mr Beatriz's car was full. He saw DGP, PB and Taylor Martin jump into the appellant's car out the front of Cronulla Station. The appellant drove alongside the oval, past the row of parked cars. As soon as the parked cars ended, the appellant had pulled over and parked. Beatriz pulled over in front of him. One of his passengers opened the door and said, "Don't worry, keep going". Mr Beatriz did not say anything to the appellant, but kept driving towards the party which was only a couple of streets away. 52Beatriz arrived at the party and dropped one of his passengers off. He and the other young man decided to go back to the oval to see what the other boys were doing. As he drove back towards the oval, he saw the appellant turn left into Woolooware Road, driving towards him. The appellant drove past so Mr Beatriz turned around and followed him to the party. 53A little later, Beatriz drove back to the oval and saw Emileen Anderson holding the fellow who was lying on the ground. An ambulance had driven into the oval. Beatriz returned to the party and said to the appellant, "What happened at the park?" The appellant had said, "I didn't see much". 54Andrew Lord had been drinking alcohol in fairly substantial quantities on the day in question. He had walked towards Woolooware Oval late in the evening with a friend. He said there were about thirty young people on the oval and some of them were drinking alcohol. Mr Lord heard screaming and looked over and about twenty metres in front of him he saw a kid fall over. He saw him fall over and then three people starting kicking him. He knew one of the people as DGP. He said all three were kicking him at the one time. He did not know who the other two were but described them as fifteen to sixteen, of slim build, one of them being described as Kiwi or Aboriginal. This third male was standing over the top of the guy on the ground, around the lower part of his body. He said he saw the third guy kick the guy on the ground to his leg area a few times. He agreed that the only person he described as being chubby or solid was DGP. 55Tama Wiki was a witness whose evidence drew an unreliability warning from the trial judge. He had been quite drunk and confused on the night but his evidence was relevant to the suggestion in the Crown case that an admission had been made by the appellant. At some stage during the evening, the appellant had said something like, "I bashed someone" or "We bashed someone". Mr Wiki was not sure. The position was confused because it was not clear whether Wiki was talking about another incident that happened in the streets that night, or whether he was talking about the incident at the oval. 56Wiki was questioned pursuant to s 38 of the Evidence Act . He was referred to a conference with the Crown a week earlier. It was put to Mr Wiki that he said the appellant had told him, "We just bashed this guy and he was conked out for a minute, he was not breathing". Mr Wiki agreed that that was what he said to the Crown, and that that was what the appellant had said to him. He agreed also that he had spoken to the police at Hurstville police station on 25 th November 2007 in a lengthy interview. It was put to Mr Wiki that the sequence of events was as follows: he saw the ambulance at Woolooware Oval, then the appellant told him about bashing a guy, and then he saw another incident, the fight on the street. During the police interview, he had spoken of DGP, the appellant "and all of them, they had a fight 'cause someone was picking on PB and they don't know who they were, and then they all went up... and it's got out of hand, and I think they were beating him and beating him". He said he was told this by the appellant. The appellant had said, "Oh yeah, we just punched on this guy". 57In cross-examination, Mr Wiki agreed he had been drunk the evening of 24 th November 2007. He was then asked a number of questions but he thought that "I", "we" or "they" bashed someone; he had thought the appellant was talking about the fight on the street. In re-examination he agreed that the conversation with the appellant had been when they were talking on the phone. That was when the appellant had said, "Yeah, we just punched on this guy". 58Finally, it is necessary in the Crown case to refer briefly to the medical evidence. Dr Paul Botterill, a forensic pathologist, had performed the post-mortem examination. The cause of death was blunt force head injury. There were bruises, grazes and swelling to the face. There was a fracture to the right cheekbone. There were two injuries to the trunk, with one of these being an injury to the lower back. There were four bruises or grazes to the upper limbs. 59Dr Botterill had found a subarachnoid haemorrhage over the surface of the deceased's brain. A tear in the vertebral artery was located and this explained the subarachnoid haemorrhage. Dr Botterill explained that the vertebral artery runs from the major blood vessel of the heart, through the back of the spine, up through the bottom of the skull. It supplied the back part of the brain on the right side. Vertebral artery damage was one of the mechanisms of blunt force head injury which results in death, but it was not the only explanation for death. The blunt force that causes the over-extension or rotation of the neck has an effect on the brain itself. The extra movement causes pressure to be applied to the blood vessel, which then tears and bleeds. It was the two together, in this case, which resulted in death. 60In the present case, there was a large area of bruising under the skin above the deceased's right ear. Dr Botterill said that injury was the most likely source of contact which led to the movement, resulting in the artery rupture, although he was not able to say whether it was a punch or a kick that caused it. He said that the "cracking sound" which some witnesses reported may have been related to the cheekbone breaking. In cross-examination he agreed that it was possible that any of the four contact points identified on the head area may have contributed, but the most likely explanation for the tear to the artery was the contact to the side of the deceased's head. 61There was also evidence from the police as to the steps they had taken to seize clothing from the appellant, DGP and PB. These items of clothing were photographed and tendered at trial.

The case for the appellant 62The appellant gave evidence. The appellant said that at the time of the alleged offence he was sixteen years of age. On the evening of 24 th November 2007 he had been at a function at the Bexley Hotel but did not drink anything. After a couple of hours, he went with Tama Wiki to a friend's house in the Kogarah area. He did not have anything to drink at this location. After about half an hour the appellant called Jarryd Wiki (Tama's cousin) and asked him if there were any parties in Cronulla. He was told about the "after party" at Woolooware. They arranged to meet at the park near Cronulla Station. The appellant left around 9:00pm and drove Tama Wiki's car. 63When the appellant arrived he saw a group of boys in the park across the road from Cronulla Station. He saw PB, DGP, Jesse Harrison, Taylor Martin and others. The appellant had a conversation with PB. He made arrangements to pick him up when they arrived at Woolooware Station. The appellant "drove around the street and in Woolooware" waiting for his friends to arrive. He went back to the train station and saw PB arguing with a person who had a drink in his hand and his shirt off. They were about fifteen metres apart and yelling at each other. PB looked angry, he said. The other fellow was with a group of about ten to fifteen boys, but the appellant did not know any of them. The appellant parked the car and went over to where PB was standing. At that time Harrison came up and grabbed PB's shoulders and told him to calm down. "Let's just go to the party", he said. PB agreed and went back to the car. Harrison sat in the front seat. Martin, DGP and PB were in the back seat. 64The appellant said that no one knew where the party was. So when they got to Woolooware Oval, they pulled over and parked. He said that Taylor Martin, DGP and PB jumped out of the car and walked quickly into the park. It took a minute or so to lock the car, and then Harrison and he walked into the park. 65The appellant said it was very dark and there were no lights on the oval. He could hear people yelling and swearing. He saw a big group of about twenty five to thirty people. He saw PB and the guy from Woolooware Station who had his shirt off. They were standing face-to-face. The appellant got to about a metre away from them. DGP was standing beside the appellant, and Harrison and Taylor Martin were standing alongside. PB said, "What's your problem?" The guy replied, "Nothing, just going to the party". He said this in a sarcastic tone. The guy gave PB a hard push to his chest and PB stumbled back but did not fall over. PB gave him a hard push and the guy stumbled but he also did not fall. 66According to the appellant, the other fellow walked back towards PB but DGP came up and punched him. It was an upper cut to his chin. DGP lunged forward and hit the guy again straight in the face and he fell immediately to the ground. There were probably about thirty people standing around and there were a bunch of girls screaming, "Stop it". 67When the guy was on the ground, DGP kicked him with his left foot around the bottom of his face area. The appellant said he grabbed PB by the back of his collar. He pulled him back from the guy on the ground. The appellant told Jesse Harrison to hold on to PB and Harrison had replied, "Yeah, sweet, I'll hold him". Harrison held PB's shoulders and was telling him to calm down. 68The appellant grabbed DGP by his shirt and pushed him backwards. DGP was yelling and swearing at the guy on the ground. The appellant told DGP, "Calm down", but DGP did not answer. The appellant kept hold of DGP and then PB started to swear and yell at the fellow on the ground once again. DGP also started yelling again. 69The appellant said that Emileen Anderson lunged forward out of the crowd and tackled DGP. DGP shoved her off and took a run up and kicked the man on the ground. He gave him a hard kick to the right side of his head around the ear area. Once again, according to the appellant, he grabbed DGP, pushed him back and told him to calm down. He said, "You've done enough". DGP, PB and Taylor then walked towards the car. 70The appellant said Emileen Anderson and some girls were attempting to assist the man on the ground. Emileen had put a jumper under his head. The appellant said to her, "Wait here, I'll be back. I'm just going to take the boys and drop them somewhere". He went back to the car and Harrison said to him, "What did you do, bro?" to which the appellant replied, "Nothing, bro". Taylor Martin then said, "It was just a one-on-one with DGP and the guy". The appellant said he dropped his friends off and told them he was going back to check if the "guy was alright and if Emileen was alright". 71When he got back to the oval, however, Emileen told him to go back to his car. He said he saw two big guys walking towards him, swearing at him. He said that he was frightened by this, and walked quickly back to his car so these two men would not catch up to him. He drove back to where he had dropped the other fellows off. He said he saw Jarryd Wiki when he reached this point. The appellant said he borrowed Jarryd's phone and called Emileen Anderson. Emileen had said, "I can't believe you just done that", and she sounded distressed. The appellant said, "Who? DGP? Yeah, I know". The appellant said he asked if the fellow on the oval was alright and he was told that he was not. He said to Emileen, "You know I didn't do it". She said, "Yeah, I know, but DGP, he's a fucken dickhead". 72The appellant said that he saw DGP sitting on a fence at the front of the house and he told him he could have killed the fellow. DGP said, "I don't care, I'll kill anyone right now", and he looked angry. 73The appellant then explained what it was that had happened in relation to his conversation with Tama Wiki. He said there had been another fight in the street and a young girl Emily McCrea had said she'd been hit. The appellant said he had walked up to a guy who he thought was responsible and asked him whether he had hit the girl. He grabbed this fellow by the shirt. Following that incident, when he walked back the appellant saw both Tama and Jarryd Wiki. Tama asked what had happened. He said, "I grabbed the guy by the shirt that I thought had hit Emily McCrea. I pushed him". Tama asked what happened after that and the appellant said that a group of other people then came up and bashed the fellow. He had been referring to a young group of boys. He was not involved in the bashing. He did not say, "I bashed him" or "We bashed him", but "They bashed". He said he noticed that Tama was really drunk when he was talking to him. 74The appellant gave evidence that he could remember wearing thongs for most of the night, but he could not remember what shoes he had put on. When the police came to his house they told him to go downstairs and they took his clothes without him being there. He now could not remember what clothes he was wearing. He said that DGP was bigger and taller than he was. DGP's skin was similar to his, but a bit darker. At the time, the appellant said he had an earring in his left ear, not both ears. He said DGP was wearing diamond earrings similar to his, a hoody with a white shirt underneath and shorts. PB was wearing a yellow shirt with dark Converse chucks and maybe cargo shorts. He could not remember what Taylor Martin was wearing. 75The appellant maintained that when he first parked his car at the oval that night, he had said to the others, "Do you just want to walk with the crowd?" because they did not know where the party was. There was nothing said about "seeing the bloke that they had had the fight with". The appellant said he spoke to Harrison for about a minute and then they went into the park. They were simply following the crowd because the appellant believed they were going to the party. 76The appellant denied that he had ever said to Jarryd Wiki that he had punched anyone, that he had had a fight, knocked them out, or kicked anyone. Nor did he say anything like that to Tama Wiki. 77In his cross-examination the appellant disagreed that he had already been to the party before he stopped his car at Woolooware Oval. He did not agree that he had followed Andrew Beatriz to the party, dropped some people off and gone back to Woolooware Station. 78The appellant said he could remember what DGP and PB were wearing that night, but he could not remember what he was wearing. They were wearing colours that stood out. He might have been wearing jeans, but he could not remember. He disagreed with suggestions that his car had stopped because the fellow causing trouble had been spotted. He disagreed that PB had told the appellant and the others about what the fellow had been doing and that that is why they stopped the car. He insisted they stopped at the oval because they needed to follow the crowd to the party. 79The appellant also insisted during his cross-examination that he had not kicked the deceased while he was on the ground. He also said he did not say to the deceased when he was near Emileen Anderson, "Stay on the ground, it's where you belong". The appellant said he was not involved in the attack on the deceased and insisted that he was attempting to act as a peacemaker. 80The appellant also disputed the details of the conversation alleged to have taken place between himself and Emileen Anderson after he had left the oval. 81There was also evidence from a number of persons to support the proposition that the appellant was a person of good character. His Honour was later to give a character direction in the appellant's favour.

Appeal against conviction - submissions on behalf of the appellant 82Mr Turnbull SC provided written and oral submissions on behalf of the appellant. Those arguments may be distilled into the following brief propositions:- First, senior counsel outlined the course of events after the retirement of the jury. There was no specific argument advanced to suggest that the course of these events fed into the subsequent allegations that the verdict was unreasonable. However, Mr Turnbull made the point that the requests for transcript during the period showed a reliance by the jury on the evidence as given, rather than the way it had been given. Secondly, the length of time taken by the jury, and the directions that his Honour was required to give, suggested that the ultimate majority verdict was not reached without some degree of difficulty. However, as I have said, no specific point was raised about the course of events after the retirement of the jury, other than to provide a background to the submissions that followed. 83Secondly, and principally, Mr Turnbull relied upon the proposition that the appellant had been convicted (and indeed sentenced) principally because of a Crown submission based on the evidence of Sarah Allen. I have earlier summarised the principal aspects of Miss Allen's evidence. 84Mr Turnbull argued that the evidence clearly established that Miss Allen had been in no position to make a positive identification of the appellant, and her evidence indicated that she did not purport to do so. Senior counsel argued that her evidence was not sufficient to satisfy a jury beyond reasonable doubt that it was the appellant she saw kicking the deceased. This was especially so in the light of her concession that she "assumed" it was the same person yelling at the deceased as had kicked him three times a short time earlier. Mr Turnbull was critical of her evidence as being "quite vague". 85Thirdly, it was argued on behalf of the appellant that no other person (among all the other witnesses) positively identified the appellant as the person who had kicked the deceased. Indeed, some of these people knew the appellant. There was ample evidence to show that DGP and perhaps PB had assaulted the deceased, but not so the appellant. 86Fourthly, it was argued that there was a clear reasonable possibility that the person Miss Allen had described was in fact DGP. There was ample evidence to show that he had both punched and kicked the deceased and that he had admitted on a number of occasions his involvement in the fracas. 87Fifthly, a detailed analysis of all the other evidence from persons who had witnessed the assault failed to positively identify the appellant and this was compounded by the fact that it came from a disparate group of young people who were intoxicated (to varying degrees), and who witnessed events in a dimly-lit park. In this regard, counsel provided schedules showing a number of discrepancies, inconsistencies and inadequacies in the evidence of the relevant witnesses. Mr Turnbull, however, accepted that the trial judge had given a very ample recitation of these matters and had given directions, where appropriate, in relation to unreliability, particularly in the case of Miss Allen and Mr Wiki. 88Finally, Mr Turnbull took the court to a number of the written submissions prepared on behalf of the Crown and suggested that the particular matters on which reliance was placed were not justified, or at least fully justified, having regard to the evidence. It will be necessary to make some reference to these submissions when I turn to a resolution of the issues.

Crown submissions on conviction appeal 89First, the Crown argued that many of the arguments advanced by Mr Turnbull were in fact the submissions made by trial counsel to the jury. Although the arguments had been put forcefully and appropriately to the jury by counsel in his closing address, it was clear the jury had ultimately rejected these. 90Secondly, the Crown argued that its case was not reliant solely on the evidence of one witness, Sarah Allen. While it did place reliance on her evidence, the Crown case was a multi-faceted case, combining both direct evidence and circumstantial inferences in order to demonstrate to the jury, beyond reasonable doubt, that the appellant was one of three persons involved in a spontaneous joint criminal enterprise that ultimately resulted in the appellant being a participant in an unlawful and dangerous act causing the death of the deceased. 91Thirdly, the Crown argued that it was open to the jury to find that there were three persons who had assaulted the deceased and that the third person was in fact the appellant. Although it had been argued on behalf of the defence at trial that the person who had administered the three kicks was DGP, it was open to the jury to reject this submission and to find on the evidence that the appellant had himself kicked the deceased while he was lying on the ground. 92Fourthly, the Crown argued that a close and careful examination of the various facets of the Crown case demonstrated not only that the appellant was present at the time when DGP first punched the deceased, but that he was present because of his concern that PB had been picked on by a person who may or may not have been the deceased and that he, like the others, was intent on confronting the deceased because of his belief that his friends had been rightly offended by the deceased's behaviour. In this regard, although the confrontation envisaged by the appellant at the time he stopped his car may have been confined to an oral confrontation, as the spontaneous joint criminal enterprise was formed later, this escalated into a physical confrontation. 93Fifthly, the jury, in any event, were entitled to accept the evidence of Miss Allen that the person she saw kicking the deceased was the same person who subsequently yelled at him, even though she did not hear the words used. The Crown argued that this, taken together with the evidence of Emileen Anderson that she identified the appellant as the person who yelled at the deceased when he was on the ground, "Stay on the ground, it's where you belong", would have enabled the jury to place considerable reliance on Miss Allen's evidence. Moreover, the assumption she had made was reasonable, based as it was on the appearance and clothing worn by the person who yelled and the person who had kicked the deceased three times. Next, the Crown argued that the person that Sarah Allen saw doing the kicking could not have been DGP. This was based upon a detailed analysis of the clothes DGP, PB and the appellant were wearing on the evening. 94The Crown maintained that, even if the jury considered that there was some uncertainty in relation to Miss Allen's evidence (that the person she saw kicking the deceased was the same person who yelled at him), the jury were perfectly entitled to consider the question of any uncertainty in the light of all the evidence as a whole, and to determine that she had correctly identified the same person kicking the deceased as had yelled at him at the end of the attack. The Crown argued that they were entitled to consider Miss Allen's evidence in the light of the actions of the appellant driving the car to the park after the earlier incident, his leaving the vehicle with the others, the observations of Mr Lord of three people kicking the deceased, and the other evidence detailed by the Crown. 95Finally, the Crown addressed the directions the trial judge had given the jury. These included reference to the unreliability of witnesses, particularly in relation to identification evidence and general observations. It included observations about the lighting and the problems generally of accurate observation on the evening in question. His Honour's directions extended to the significance of intoxication for each individual witness and, where it was appropriate, how that might affect reliability of the evidence. In addition, no complaints were made, the Crown said, in relation to his Honour's summing up at the time, nor were any complaints made on the appeal. In other words, the Crown argued that all the criticisms that the appellant sought to make about aspects of the reliability of the witnesses' observations and issues of identification were fairly and squarely put before the jury by the trial judge. It was open for the jury to conclude as it did.

Principles where an appeal is made on the basis that the verdict of the jury is unreasonable 96The principles in relation to an appeal on the ground that a verdict of a jury is unreasonable or cannot be supported are not in doubt. They were not debated on the hearing of the present appeal and there is no need for any detailed discussion in that regard. Those principles are well understood and have been expressed in a range of authorities in the High Court of Australia and in this court. They may be summarised in the following brief manner (helpfully summarised by Johnson J (Basten JA and Hulme J agreeing) in Rasic v R [2009] NSWCCA 202 at [25] - [30]:- (1)Where it is said that the verdict of a jury is unreasonable or cannot be supported on the evidence, the question which the appeal court must ask itself is whether, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty ( M v The Queen [1994] HCA 63; 181 CLR 487 at 443 ; MFA v The Queen [2002] HCA 53' 213 CLR 606 at 614 - 615 [25], 623 [55] - [57]). (2)The court's function is to be performed by paying special respect and legitimacy to jury verdicts deciding contested factual questions concerning the guilt of the accused in serious criminal trials ( MFA v The Queen at 624 [59]). The appeal court must recognise that the jury had the benefit of seeing and hearing the witnesses, including the appellant where evidence has been given ( M v The Queen at 493). (3)In most cases a doubt experienced by an appellate court will be a doubt the jury ought also to have experienced. In such a case of doubt, it is only with the jury's advantage of seeing and hearing the evidence that can explain the difference in conclusion about the accused's guilt that the appellant court may decide that no miscarriage of justice has occurred ( MFA v The Queen at 623 [56], referring to M v The Queen at 494). (4)If the evidence, upon the record itself, contained discrepancies, displays inadequacies, is tainted or otherwise lacks probative force so as to lead the court to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and set aside a verdict based upon that evidence ( M v The Queen at 494). (5)The court is required to consider the totality of the evidence before the jury and not merely parts of it ( R v Hillier [2007] HCA 13; 228 CLR 618 at 637 - 638 [46] - [48] (Gummow, Hayne, Crennan JJ); R v Keenan [2009] HCA 1; 83 ALJR 243 at 267 [128] (Kiefel J, Hayne, Heydon and Crennan JJ agreeing); applied in Burrell v R [2009] NSWCCA 193 at [57] - [61] (Giles JA, Howie and Buddin JJ agreeing). 97It needs always to be borne in mind that a jury brings to consideration especially in a circumstantial case, or one that is partly circumstantial, the common experience of members of the community. Consequently, it is to be expected that they will bring to bear on the issues before them their collective knowledge of human affairs ( R v Kaldor [2004] NSWCCA 425; 150 A Crim R 271 at 272-273 [2], 293-294 [86]; Chahine v R [2006] NSWCCA 179 at [88]; BJR v R [2008] NSWCCA 43; 185 A Crim R 360 at 380 [97]). They will apply their collective common sense to the evidence and to the issues at trial. While the court must make its own assessment of the evidence, it is the cumulative effect of the evidence that must be considered with due regard to the jury's common experience of human affairs, and the common sense brought by the jury to their determination of guilt or innocence ( Burrell v R at [65]). 98The principles to which I have made reference are those which must be brought to bear upon the present issues.

Resolution of the issues - conviction appeal 99In my opinion, an assessment of the whole of the evidence, including those aspects I have endeavoured to summarise, leads me to the conclusion that the jury's verdict was a reasonable one and available to it on the evidence. In reaching that conclusion, I have taken into account the advantages the jury had in seeing and hearing the individual witnesses, including the evidence of the appellant. I have also taken into account the obvious benefits the jury had of hearing the arguments advanced by counsel, and the careful directions given by the trial judge. Those arguments and directions would have reinforced in the minds of jurors the need to approach the reliability issues in the trial with appropriate caution and circumspection. No criticism has been made in relation to his Honour's directions, either at the trial or on the hearing of this appeal. 100The first point that I would make is that the practical issue that loomed large in the particular circumstances of this trial was whether or not there had been a third man involved in the physical assault on the deceased. If so, could the jury be satisfied beyond reasonable doubt that the third man was the appellant? Was there a reasonable possibility that the third man was, in truth, the second man, namely DGP? 101There could be no doubt on the evidence before the jury that both PB, and especially DGP, had been active participants in the assault. That was clear. But it was also clear, indeed it was not in dispute, that the appellant was physically present throughout the pushing, punching and kicking of the deceased by those two youths. The appellant admitted he was there, but maintained that he was no more than an onlooker, indeed, that he played the role of a peacemaker in the process. It was open to the jury to disbelieve this evidence and indeed there was powerful evidence to support such disbelief. 102First, there was the evidence that everybody in the car driven by the appellant knew that PB had been seriously harassed by another person, and that he was indignant about it. Both Harrison and Taylor Martin, who were subsequently in the car with PB, had seen the verbal confrontation with the deceased (or a person they believed was the deceased) at Woolooware Station. PB was described as angry and swearing. These three joined the appellant and DGP in the car shortly afterwards. Moreover, the deceased (or a person believed by them to be the deceased) continued to scream out something towards the car as it drove away. Harrison specifically told the appellant that the deceased (or a person who was believed to be the deceased) had been having an argument with PB and he pointed him out to the appellant. Indeed, the appellant himself said that he saw PB arguing with the man who had a drink in his hand and his shirt off. 103The appellant played this down during the evidence he gave during the trial. While he agreed that he could see that PB was angry, he said that this did not concern him because, once in the car, "PB snapped out of it like normal". Mr Parkes had said that, just before he and the deceased reached the oval, the cream sedan he had earlier described came from behind them and drove past them. DGP was hanging out of the window yelling out abuse with his finger up. It was open to the jury to conclude that this abuse was directed at the deceased and that the appellant would have been well aware of it. 104Secondly, it was open to the jury to find that the appellant, instead of driving the five of them to the party that they had planned to attend, deliberately pulled the car over at Woolooware Oval so that the deceased could be confronted. In his evidence, the appellant insisted that the only reason he parked the car at the oval was so that he could join the crowd who were making their way to the party. In other words, he did not know the way to the party and this was one way - by following the crowd - that he could get there. This evidence was contradicted by Andrew Beatriz. His evidence was that the appellant had followed him to the party address in Church Street a little while earlier in the evening, when only DGP was in the car with him. Then both cars left the party address and headed back down to Woolooware Station where, shortly afterwards, the appellant collected the other three men. Moreover, Mr Beatriz said the appellant drove alongside the oval past the rows of parked cars. As soon as the parked cars ended, the appellant pulled over and parked. There was then a discussion between the passenger in Beatriz's car and Beatriz himself. His passenger said, "Don't worry, keep going". Consequently, Mr Beatriz did not say anything to the appellant but kept driving towards the party which was only a couple of streets away. 105This evidence, if accepted, would have contradicted the appellant's later evidence that he had stopped at the oval so that he could find directions to the party. As the Crown submitted, had he wished to go back to the party (and didn't know the way) he could simply have followed Beatriz's car back to the Church Street address. But he did not. What he did was to stop his vehicle at the oval where the deceased had been seen. It was open for the jury to find that the appellant, who was the driver of the car, and consequently the person in control in that sense, deliberately stopped the car at Woolooware Oval with the intention of facilitating his friends, and subsequently himself, to confront the deceased in relation to the prior disagreement. 106Mr Turnbull criticised this aspect of the Crown argument. He said that the proposition that the appellant had already driven down to the party address, although put to the appellant, was never put to Harrison or to Taylor Martin. In my view, however, the failure to put the matter to those witnesses did not detract from the fact that it had been put to the appellant and denied by him. It was open to the jury to disbelieve the appellant on this point. 107Mr Turnbull also disputed the proposition advanced by the Crown that the appellant had left the vehicle with the other men. Mr Turnbull was, strictly speaking, correct in this proposition because it was clear that the appellant did not leave the motor vehicle for a minute or so after the others moved into the oval. Nevertheless, he was there throughout the whole of the verbal and physical confrontation, as he was to concede in his evidence. 108The next point I would make is that there was evidence before the jury that there were three people involved in kicking at the deceased. Mr Lord said he saw the deceased fall over, and then three people started kicking him. It is true that apart from DGP whom he recognised, he did not know the other two men. In addition, his description of the other two men scarcely matched the description of the appellant. He had described each of the other two men as having a slim build. Nevertheless, there was material upon which the jury could be satisfied that three men had been involved in the physical assault, and not just two. 109Was it possible, however, that, of the five men who came from the car onto the oval, that either Taylor Martin or Harrison was involved in the fracas? It was not, of course, the defence case that this was so. Nevertheless, Harrison's evidence was that he stayed at the entrance to the oval, simply watching. Although he did not give evidence at the trial, it had not been suggested to him at the committal (and his earlier evidence was read to the jury) that he had been in a position other than the one he described. 110Taylor Martin was called and gave direct evidence in the trial. He said he had not been involved in the assault and it was not suggested to him in cross-examination that he had been involved in the assault. The consequence of all this was that there was only one other possible person of the five who might have been the third person involved in the assault, if in fact there were three persons so involved. That person would have been the appellant. He would have been the third man. There was no suggestion that there were any other persons on the oval that night who were involved in the assault on the deceased, beyond those who had come from the appellant's car. The mere presence of a considerable number of other people at the oval did not raise this as even remotely possible. The trial was not conducted on that basis and no arguments to that effect were made anywhere in the evidence or submissions. 111Was it open to the jury to be satisfied beyond reasonable doubt that it was the appellant who was the third man? This brings me to the evidence of Sarah Allen. This was not, however, the only evidence upon which the jury might have been satisfied that the appellant was a participant in the assault. Of significance, for example, was the evidence of Emileen Anderson, who knew the appellant. While she did not see him punch or kick the deceased, she gave clear evidence it was he would have spoken to the deceased while he was on the ground, saying, "Stay on the ground, it's where you belong". This was plainly evidence upon which the jury might have relied to find that not only was the appellant not a peacemaker in the process, he was acting with marked hostility towards the deceased. Mr Turnbull argued that this was after the event, as indeed it was. But the cogency of the evidence was the way in which it had the capacity to interact with the evidence of Miss Allen, to which I now turn. 112The trial judge treated the evidence of Miss Allen as identification evidence in the broad sense. He was correct to do so. The trial judge added his imprimatur to the forceful submissions of trial counsel for the appellant. He gave comprehensive directions pointing out the reasons why the evidence of Miss Allen might not be reliable. No complaint is made in respect of any of the directions the trial judge gave. 113But, of course, as Mr Turnbull said, Miss Allen did not purport to identify the appellant. She did not know him and she could not see the facial features of the man who kicked the deceased three times while he lay upon the ground. But there were three aspects of her evidence that were significant if the jury, as they were entitled to do, ultimately placed reliance upon her evidence. First, she was able to describe the clothing and physique of the person who delivered the three kicks. Secondly, her evidence, in conjunction with that of Emileen Anderson, would have supported the possibility that it was indeed the appellant who was the third man who was involved in the assault. Thirdly, if reliance could be placed on the accuracy of her observations, it provided a substantial basis for the jury to determine that the person she saw kicking the deceased was not DGP (or for that matter, PB). 114I say the first matter was significant because her description of the person she saw doing the kicking was consistent with the build, clothing and colouring of the appellant. It will be recalled that she had said that the man had quite a large build with dark skin, and was wearing a white Bonds-type shirt and jeans. There was evidence that the appellant was wearing a white shirt, blue jeans, and had a diamond earring. It is true, as Mr Turnbull argued, that her description of the clothing was not terribly specific. However, the police seized items of clothing from the appellant's home that included blue "Calvin Klein" jeans, a white t-shirt and a grey one. (It seems the appellant did not identify to the police the clothes he had worn when he was at the oval). There was also a second pair of blue jeans found at the appellant's home. The appellant's white t-shirt did have some writing on it, and Miss Allen did not describe the shirt other than as earlier indicated. Nevertheless, there was a match between the clothes she described and those that had been worn by the appellant on the night. There was also a link between the jewellery she described and that which had been worn by the appellant. 115Mr Turnbull was critical of the fact that Miss Allen simply made an assumption that the person she saw kicking the deceased was the same person who yelled at him as he lay on the ground. In other words, senior counsel said there was no evidentiary basis for the assumption demonstrated by her evidence. Her re-examination, however, showed that there was. The assumption she made had been based on the clothing, build and colouring of the person who yelled. She assumed he was the same person as had kicked the deceased because of those factors. 116The second area of significance for her evidence was that it dovetailed with Emileen Anderson's evidence, that she had heard and seen the appellant say to the person on the ground, "Stay on the ground, it's where you belong". These two pieces of evidence provided by the two young women could not, of themselves, by any means, demonstrate the guilt of the appellant beyond reasonable doubt. They were, however, significant circumstantial facts. They certainly left it open to the jury, along with all the other evidence, to conclude that the appellant had been the person who kicked the deceased. 117Thirdly, if the jury were entitled to place reliance on the accuracy of Miss Allen's evidence, and were further bolstered along the path to proof of guilt by Emileen Anderson's evidence, Miss Allen's evidence carried a further aspect of significance. It was the defence case that the person who kicked the deceased was DGP, and that the appellant was no more than an onlooker, indeed a peacemaker. Miss Allen's evidence made it clear that the man who kicked the deceased three times could not have been DGP or PB. This was because of the clothing that they each were undoubtedly wearing that night. In DGP's case, he was wearing shorts, a t-shirt and a dark "hoodie". The latter piece of clothing had been his upper outer garment, although it was not later located by the police. The jury had photos of DGP's clothing, which was also described by witnesses at the oval. Similarly, PB was wearing a lurid coloured t-shirt and shorts. The man who kicked the deceased while he was on the ground, based on the clothing each wore, could not have been either of these two. 118In relation to evidence of Emileen Anderson, it carried a further aspect of significance for the Crown case. It gave the lie to the suggestion that the appellant was acting as a peacemaker. The words she heard him utter were of a hostile nature. More importantly, they were capable of being regarded by the jury as giving an indication, not of his intent, but of his satisfaction as to what he had done. The words were capable of being consistent with the self-satisfaction of a person who had kicked the deceased precisely to make him "stay on the ground". They were scarcely consistent with the attitude of a person intent on quelling the violent actions of his friends. The appellant denied he had used those words. It was not put to Miss Anderson in cross-examination, however, that she was wrong in identifying the appellant as the person who had used those words. 119Finally, there was the evidence available to the jury of Tama Wiki that the appellant had said, "I (or we) bashed someone", and that the appellant had also said, "We just bashed this guy and he was conked out for about a minute and was not breathing". There were obviously problems with this evidence, and the judge gave directions which entitled the jury to consider whether Wiki was or was not unreliable. It may have been in many respects unreliable evidence, but the jury were entitled to act upon it, in particular his initial statements to police. However, this evidence was but one part of the Crown case and needed to be assessed in the light of the other material which I have earlier recited. 120The jury, in determining that the appellant was the third man, was entitled to look at all the circumstances and evidence. It could not be said that their approach to the resolution of the issues was confined to the evidence of Sarah Allen. It was open to the jury, as I have said, to conclude beyond a reasonable doubt, based on all of the evidence, that the appellant had deliberately driven to the oval and parked there to confront the deceased with his friends, having become overly protective of PB's sense of indignity. It was open to the jury to find that he had exited the car, admittedly a minute or so after the other three, and that all the young men headed towards the deceased with a motive to confront him in some way. It was open to the jury to find that there were three persons involved in this spontaneous assault on the deceased and that one of them, the person whom Sarah Allen described, was the appellant. 121In my opinion, for all these reasons, the appeal against conviction must fail.

Appeal against sentence 122The appellant has argued that he is entitled to a justifiable sense of grievance on the basis of the more lenient sentences imposed on the co-offenders, DGP and PB. In the written submissions filed on the appellant's behalf, Mr Turnbull argued that the sentences of the other two young men were considerably more lenient than that imposed on the appellant. 123That was certainly so in the case of PB, although the sentencing judge clearly found that his culpability was a good deal less than that of the appellant and DGP. The finding that his Honour made in relation to PB fully explained why it was his Honour was required to impose a lesser sentence upon him. The findings his Honour made concerning PB (in the earlier sentencing hearing) were:- 120 The evidence indicates that DGP's culpability in relation to the offence is towards the high end of the range for such offences. I find that PB's culpability is less than that of his co-offenders, DGP and CW. However, his participation in the assaults was of course sufficient to establish him as party to the joint criminal enterprise. PB's presence at the time of the assault, and his readiness to give aid to his co-offenders if required, must be taken into account in determining his culpability. 121 I do not, with respect to the submissions made, consider that the conduct of the kind in question, involving such a high degree of criminality, can be merely characterised as the conduct of immature youths. Both DGP and PB acted with deliberation, purpose and cruelty. 122 In relation to DGP, his actions involved a punch and a kick that were so powerful that either one of them was capable of causing death. In my opinion, the matters to which I have referred in these remarks placed DGP's conduct well above that of mere immature conduct. ... 125 The culpability of the offender, PB, I assess to be considerably less than that of his two co-offenders. His plea of guilty and expressions of remorse are also factors to be considered in mitigation. In terms of his subjective case, I have taken into account that he has a lower than average capacity of intellectual functioning but that he has made progress whilst in custody and has strong prospects of rehabilitation, having regard to what has been identified as positive protective factors. 124By comparison, a fair reading of the two decisions given on the same day demonstrate that his Honour was of the view that the appellant and DGP were both equally liable for their role in the manslaughter. Indeed, making allowance for the twenty per cent discount in favour of DGP, the sentence imposed on him was in fact higher than that imposed on the appellant. There was no significant aspect of their subjective circumstances, when compared, that warranted their being treated in a markedly different way. 125Mr Turnbull, in his written submissions, argued that his Honour did not allude to parity when sentencing the appellant. Senior counsel suggested that the issue may have been overlooked or rejected. This is not, however, a fair reading of his Honour's two decisions given on 30 th October 2009. Indeed, a fair reading of both decisions shows that his Honour was very conscious of the need to distinguish between the culpability of all three offenders. His Honour attended to this with some care. 126Secondly, the sequence of his Honour's two decisions showed that he was only too well aware of the tasks he had to perform. Thirdly, it is not necessary for a sentencing judge (in the situation in which his Honour was placed) to anticipate and resolve potential appeal arguments about parity. What his Honour had to do (and did) was to assess and compare the objective seriousness of the criminality of each of the offenders in the two separate decisions he gave. It was appropriate to do so as two of the young men had pleaded guilty, whereas one had not yet been convicted by a jury at the time the pleas were entered. His Honour carefully examined the objective circumstances of each offender and then imposed an ultimate penalty that had regard primarily to the objective level of criminality revealed by the participation of each offender in the joint criminal enterprise. 127I have earlier set out the findings made by his Honour in relation to the objective circumstances of the appellant's offence. As I have said, the remarks on sentence demonstrated, when regard is had to the two decisions, that the appellant's participation in the joint criminal enterprise, on the basis of his Honour's findings, was of the same order as that of DGP. It is appropriate for this court to consider the remarks on sentence for all three offenders as being effectively the one judgment in which his Honour outlined his relevant findings and made the appropriate comparisons. 128Finally, in his oral submissions, Mr Turnbull argued that it was not open to his Honour to find (as he did in para 53 of the remarks on sentence) that the appellant had kicked the deceased three times while he was on the ground. His Honour had expressed this in these terms - "there is no reason to accept that the jury did not accept Miss Allen's evidence to the effect that [the deceased] was kicked three times, including at least once to the head/neck region, as described in evidence". 129Equally, for the reasons I have given when examining the conviction appeal, there is no reason why it was not open to his Honour to accept that these actions had been carried out by the appellant, as Miss Allen had described them. 130This ground is not sustained. 131The final ground argued by Mr Turnbull was that the sentence imposed was manifestly excessive. Mr Turnbull accepted that, given the protean nature of the offence of manslaughter, no two cases are exactly alike and, for this reason, a comparison of the sentences imposed in other manslaughter cases is of little assistance. This proposition has been accepted by this court on many occasions: Taber v R; Styman v R (2007) 170 A Crim R 427 at [102]; R v Forbes (2005) 160 A Crim R 1 [133] - [134]; R v Green [1999] NSWCCA 97 at [24]; see also R v Vongsouvanh [2004] NSWCCA 158 at [38] where reliance on data was described as "unhelpful and even dangerous"; R v Alexander (1994) 78 A Crim R 141 at 144; R v Maguire (Unreported, NSW Court of Criminal Appeal, James, Grove and Hulme JJ, 30 August 1995); R v Troja (Unreported, NSW Court of Criminal Appeal, Kirby P, Grove and Newman JJ, 16 July 1991). 132Counsel submitted, however, that a consideration of three "comparative cases" pointed to the proposition that the sentence here, and in particular the non-parole period, was manifestly excessive. He submitted that there were significant factors going to the issue of special circumstances, including the fact that it was the appellant's first sentence of imprisonment, his youth and the need for rehabilitation ( R v Simpson (2001) 126 A Crim R 525). I think it may simply be said that none of the three cases referred to by Mr Turnbull in his written submissions is of any real utility in resolving this ground of appeal. They are different in so many ways, as Mr Turnbull himself accepted. As a consequence, there is no utility in making a detailed analysis of them. In my opinion, his Honour correctly assessed the objective criminality of the appellant in the present matter. His Honour appropriately had regard to a range of subjective circumstances, a number of which were favourable to the appellant. His Honour found special circumstances so as to justify a variation of the prescribed statutory ratio of non-parole to parole periods. It was a matter for his Honour's discretion as to how those special circumstances should be recognised in the structure of the sentence. His Honour correctly identified and comprehensively applied the principles involved in sentencing a juvenile offender. 133The sentence was perhaps a high one, especially having regard to the appellant's youth. But it was not impermissibly high and, in my opinion, his Honour applied correct sentencing principles in all respects. His Honour found that the level of violence arising from the appellant's actions "was of a high order". He found that the appellant's actions in kicking the deceased were "severe and ferocious and were capable of, and did in fact, inflict significant physical injury". He rightly concluded that "the offender displayed a level of callousness and cowardice that must be abhorred in any civilised society". 134Finally, his Honour noted that this yet was another instance of an innocent citizen being set upon in entirely unprovoked circumstances, and subjected to a high level of violence by young men acting together in a joint criminal enterprise. His Honour appropriately recognised that, on this account, general deterrence was an important factor in the sentence to be imposed. 135In my opinion, it has not been demonstrated that the sentence was manifestly excessive. I propose the following orders: (1) Appeal against conviction dismissed (2) Leave to appeal on sentence granted (3) Sentence appeal dismissed. 136HIDDEN J: I agree with the orders proposed by Whealy JA and with his Honour's reasons. 137The sentence is severe for a juvenile offender. However, the offence was a serious one of its kind and, in the circumstances, the sentence cannot be said to be manifestly excessive. 138JOHNSON J: I agree with Whealy JA.

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