HUDD v Regina

JUDGMENT 1HOEBEN JA: Background Pursuant to s 5(1) of the Criminal Appeal Act 1912, the appellant seeks leave to appeal against his conviction for murder and against a sentence imposed by Newman AJ at Sydney on 22 February 2005. 2The appellant and Scott Brown were jointly tried in the Supreme Court before Newman AJ and a jury on an indictment containing the following counts: Count 1: That they on 24 December 2002 at Matraville in the State of New South Wales did murder James Rawas. Count 2: That they on 24 December 2002 at Matraville in the State of New South Wales did, whilst armed with a dangerous weapon, namely a revolver, rob James Rawas of cash, a mobile phone and a notebook. Count 3: That they on 24 December 2002 at Matraville in the State of New South Wales did, whilst armed with a dangerous weapon, namely a revolver, rob Pedro Haedo of cash, a mobile phone and a notebook. Count 4: That they on 24 December 2002 at Matraville in the State of New South Wales did maliciously wound Kevin Hines with intent to do grievous bodily harm. Count 5: That they on 24 December 2002 at Matraville in the State of New South Wales, being in company with each other, did assault Pedro Haedo thereby occasioning to him actual bodily harm. 3The trial commenced on 2 November 2004 and on 9 December 2004 the jury returned verdicts of guilty in respect of each charge against both the appellant and Mr Brown. 4The appellant was sentenced as follows: Count 5: A head sentence of 2 years commencing 24 December 2002 and expiring 23 December 2004 with a non-parole period of 18 months expiring 23 June 2004. Count 4: A head sentence of 5 years commencing 24 December 2002 and expiring on 23 December 2007 with a non-parole period of 3 years and 9 months expiring 23 September 2006. Count 3: A head sentence of 10 years commencing 24 December 2002 and expiring on 23 December 2012 with a non-parole period of 7 years and 6 months expiring 23 June 2010. Count 2: A head sentence of 10 years commencing 24 December 2002 and expiring on 23 December 2012 with a non-parole period of 7 years and 6 months expiring 23 June 2010. Count 1: A head sentence of 27 years commencing 23 June 2004 and expiring 22 June 2031 with a non-parole period of 20 years and 3 months expiring 22 September 2024. 5The appellant was therefore sentenced to imprisonment with a total head sentence of 28 ½ years commencing 24 December 2002 and expiring 22 June 2031 with a total non-parole period of 21 years and 9 months expiring on 22 September 2024. 6The Crown case was one of felony murder. The Crown alleged that the appellant and Scott Brown entered into a criminal enterprise to commit an armed robbery on the Retravision store situated in Bunnerong Road, Matraville. 7The Crown alleged that shortly after the store was opened to the public, the appellant and Mr Brown entered. The appellant was observed to walk to the rear office holding a pistol in front of him. Three employees, Messrs Rawas, Haedo and Hines, were ordered to lie on the floor. The appellant and Mr Brown were unsuccessful in their attempts to obtain the keys to the safe and proceeded to search bags belonging to the employees, finding and taking in excess of $2000, a mobile phone and a notebook. The appellant fired his pistol into a box in the office. 8Both offenders then left the office, leaving the three employees bound by electrical cable ties. Mr Rawas soon managed to extricate himself from the cable ties, retrieved a machete from a specific place in the store and gave chase to the appellant and Mr Brown. 9Outside the front entry to a delicatessen shop, approximately 20 metres from the Retravision store, Mr Rawas caught up with the appellant. A struggle ensued with Mr Rawas holding the machete to the appellant's throat at one point in time. The appellant managed to swing around and extricate himself from Mr Rawas, reached into a bag which he was carrying, retrieved his pistol and shot Mr Rawas in the stomach. A second shot was fired shortly thereafter and is thought to have lodged in the roof of the shop. 10After the shooting the appellant was set upon by persons who saw the event, including the other two employees from the Retravision store and was held by them until the police arrived. In the course of the struggle with those persons, the appellant was disarmed. Mr Rawas was rushed to hospital, but died some hours later. 11It was the appellant's case at trial that he was an innocent bystander on the footpath near the delicatessen and was there run into by a man fleeing from the Retravision shop who had a pistol. The appellant said that he became embroiled in a struggle with this man. During the struggle, the man let go of the pistol, and made good his escape, leaving the appellant with a pistol at which point he was restrained by others who came to assist the shop owner. 12The appellant relied upon the following Grounds of Appeal: CONVICTION Ground 1 - The learned trial judge erred in declining the application made by the appellant at his trial that there was "no case" on the charge of murder, based on the principle of "felony murder". Ground 2 - The learned trial judge erred in his directions to the jury on the issue of the appellant's liability to be convicted of murder on the basis of felony murder. Ground 3 - The verdict of the jury on the charge of murder is unreasonable, having regard to the evidence on that charge: s 6(1) Criminal Appeal Act 1912 (NSW). 13The appellant also wished to argue the following Grounds of Appeal himself: Ground 1 - His Honour erred in admitting that portion of the evidence of Messrs Kerr and Cole insofar as it relates to their stated observations of: (a) The appellant shooting the victim; (b) The appellant holding a gun prior to the shooting of the victim; (c) The appellant wrestling with the victim prior to the shooting. Ground 2 - The Court erred in admitting evidence of the gunshot residue as evidence of the appellant having used the gun to murder the victim. 14When the appeal came on for hearing, the appellant was too ill to attend either in person or by way of audiovisual means. Senior Counsel for the appellant, while not making any submissions in support of the last two Grounds of Appeal, advised the Court that had he been well enough, it was the appellant's intention to argue those grounds in person. Since that was not possible, he invited the Court to take into account the appellant's written submissions in relation to those Grounds of Appeal. He also sought the leave of the Court to tender what was described as a "cleaned up" DVD which was said to be a copy of Exhibit J at trial, to which extensive reference was made by the appellant in his written submissions. 15The Court deferred ruling on the admissibility of the "cleaned up" DVD, until it had the opportunity to view it. Exhibit J comprised a video and DVD of approximately four minutes in length, taken from a CCTV security camera positioned outside the delicatessen. Factual background and conduct of trial 16The Crown outlined the manner in which it sought to prove that the appellant had committed the offence of murder. "It is the Crown case that [the appellant] and Brown murdered Mr Rawas. In the circumstances of this case, the crime of murder is committed when the act of the accused causing the death charged was done during or immediately after the commission, by the accused or some accomplice with him, of the crime of armed robbery while armed with a dangerous weapon. The Crown does not have to prove that either man intended to kill or intended to cause grievous bodily harm to Mr Rawas. All the Crown does have to prove beyond reasonable doubt is the act causing death was done during or immediately after the crime of armed robbery with a dangerous weapon. As to the [appellant], it is the Crown case that during or immediately after he committed the crime of armed robbery with a dangerous weapon, he shot and killed Mr Rawas with that same weapon. Now I also include the words "during or immediately after" the armed robbery, because an armed robbery does come to an end, and until then the robber has successfully escaped the crime. In this case, the robbers escaped on foot during or immediately after the commission by the [appellant], and at the time of the shooting of Mr Rawas, the shooting of Mr Rawas was immediately after the robbery ..." (T.12.36 - 13.5) 17Later the Crown said: "In order to prove that the accused are guilty of murder, the Crown must first prove beyond reasonable doubt the elements of the offence of robbery while armed with a dangerous weapon as against each accused. It is a foundation crime, of the murder. The offence of armed robbery with a dangerous weapon is made up of elements, each of which the Crown must prove and the elements of this offence are these: Firstly, that an act was done with the intention to steal; and secondly, the use of a dangerous weapon to inflict force or to convey the threat of force so as to procure the submission of the victim; and thirdly, the taking of the property of the victim, or property which was in his presence, custody or control. It is stealing by the use of violence, a firearm, ladies and gentlemen, is as you would have already thought, a dangerous weapon. So in order to prove the offence of murder you first must be satisfied beyond reasonable doubt that there was a robbery with a dangerous weapon. In this case it is alleged that Mr Rawas was fatally shot by the [appellant] during or immediately after the armed robbery with a dangerous weapon ..." (T.14.11 - .33) The evidence in the Crown case The robbery and Retravision employees Pedro HAEDO 18Mr Haedo was employed as a bookkeeper at the Retravision store. Shortly after the store opened, a man appeared in the doorway of the office holding a pistol in his right hand. He was "an old man ... like 50 or something". He was wearing big, dark glasses, a dark baseball cap and dark clothes. He was approximately the same height as Mr Haedo. The man had a strong Australian accent. He ordered Mr Haedo and Mr Rawas on a number of occasions to lie on the floor or he would kill them. Mr Haedo put his hands up and went down on his knees. 19He saw a second man push Mr Hines into the office and as he did so, he hit Mr Hines in the back of the head with a vacuum cleaner. When Mr Haedo moved to get up, he also was hit hard on the back of the head with the vacuum cleaner. When the two men were unsuccessful in obtaining the keys to the safe, they made the employees empty their pockets and searched Mr Haedo's bag. 20Mr Haedo's wrists were tied at the back of his head with plastic ties. The man with the pistol said "Don't move or I'll kill you, if anyone moves I'll kill them". Mr Haedo heard the men running to the main door. 21Mr Haedo then heard Mr Rawas say something like "bastards" and he ran out of the office. Mr Haedo estimated that it took him about a minute to free his hands and then he ran out of the shop after Mr Rawas. 22Mr Haedo said that the front door to the shop was wide open and he saw Mr Rawas holding a man by the arms about 10 metres away in front of the delicatessen. He identified that man as the person who had come into the office with the pistol. "It was the same one who went in there with the base ball cap and the glasses all - the wearing of the clothes the same and also the same gun" (T.101.9). 23Mr Haedo observed that Mr Rawas appeared to have hold of the man with the pistol by his wrists and the pistol was pointing towards Mr Rawas on the right side of his body. Mr Rawas was holding the knife in his hand. As Mr Haedo ran closer, he could see blood on Mr Rawas' shirt, near where the gun was pointing. Mr Rawas was still on his feet at the time. Mr Haedo did not hear any shots fired. Mr Haedo struggled with the man with the pistol and the three of them fell to the ground. The man with the pistol was saying "Okay you got me" but was still struggling and would not let go of the pistol. 24Mr Hines and a Mr Monroche-Cabon came to Mr Haedo's assistance and they also struggled with the man holding the pistol. Mr Haedo got to his feet and saw a bag near Mr Rawas which was unzipped with many plastic cable ties still inside. He also saw the baseball cap on the ground. Mr Rawas had his eyes open, but was pale. Mr Haedo took the bag and its contents back to the Retravision shop in case someone stole it. 25Mr Haedo confirmed that the man with the pistol with whom he had struggled, was the same man who had entered the office holding a pistol at the time of the robbery. Despite being vigorously challenged in cross-examination as to this identification, he did not resile from it. He agreed that Mr Rawas must have been shot before he came out of the shop because he did not hear a shot. He confirmed the identification of the appellant under re-examination (T.157). Kevin HINES 26Mr Hines was the Sales Manager at the Retravision shop. He heard the front door slam and turned to see a man walking towards the office holding a pistol. Mr Hines was grabbed by a second man who struck him on the head and threw him to the floor in the office. He noted that the two men became very agitated when they could not obtain the keys to the safe. 27Mr Hines had his hands tied behind his back with some kind of nylon tie. Just as the men left the shop, Mr Hines heard a shot and heard Mr Rawas say "bastards". Mr Hines was not aware of Mr Rawas leaving the office and only realised he and Mr Haedo had done so when he looked around and saw that he was the only person there. He then slipped out of the ties and ran out of the shop. 28Just before exiting the shop, Mr Hines heard two gunshots. He looked up the street towards the delicatessen and saw Mr Rawas lying on the pavement. He saw Mr Monroche-Cabon and Mr Haedo wrestling with a person holding a pistol. Mr Hines grabbed the left arm of the person holding the pistol and twisted it. He could see the pistol in that person's hand and it was cocked. He could see that the gunman had his finger on the trigger. He placed his finger in a position to block the trigger because he was afraid the pistol would accidentally discharge and injure someone. 29The person with the pistol kept struggling until the pistol was forced from his hand. Thereafter, he was restrained until the police arrived. Mr Hines kept possession of the pistol. 30Mr Hines was not able to give much of a description of the person he had seen in the shop holding a pistol, other than that he was wearing fawn or light brown shoes and that the shoes were loafers or joggers. He was sure that the person he struggled with was holding the pistol in his right hand. He agreed that he might have been mistaken as to exactly where he placed his hand in trying to prevent the pistol from discharging. He said that during the struggle, the person with the pistol held it by its handle and would not let it go. Richard MONROCHE-CABON 31Mr Monroche-Cabon was a delivery driver at Retravision. He heard a commotion in the shop at about 9am but thought that this was due to an argument between Mr Rawas and Mr Hines. About five minutes later, he was returning to the front door of the shop when he heard a bang and saw people running. He looked down Bunnerong Road and saw Mr Rawas lying on the ground about 15 metres away from the shop and Mr Haedo struggling with another person. The person he was struggling with looked pretty old and Mr Haedo was crying out "Help, help Richard, this man shot Jim". 32Mr Monroche-Cabon went to help and put his knee on the man's neck to pin him to the ground. He told the man to release the pistol but he would not. He saw that the pistol was in the man's right hand and when he released the pistol, Mr Hines who had subsequently arrived, kicked it away. Under cross-examination he was not sure that the man was holding the pistol in his right hand. Bystander evidence Peter COLE 33Mr Cole attended the delicatessen to buy morning tea. He was on the second step in the doorway when he heard raised voices. He saw two men having a scuffle. One man had a machete at the other man's throat. He recognised the man with the machete as Jim from Retravision. The men were about five-six feet away. 34Mr Cole said: "Jim had the machete around his throat and then the other gentleman somehow spun out from his grasp and produced the gun and shot him." (T.219.18) 35He described the man with the pistol as a grey-haired, elderly gentleman. As soon as he saw him shoot Mr Rawas, he jumped back inside the shop. He first saw the pistol about 30 seconds after the commotion started. After the man with the pistol spun around, the two men were about a metre apart facing each other. The man with the pistol had a black bag over his shoulder and he pulled the pistol out of the bag. "He just took the gun out of the bag and just went 'boom'". (T.220.52) The man used his right hand, which was half outstretched. Mr Cole thought that Mr Rawas had been shot twice. "The second shot, he moved forward and he managed to grab the gentleman that had the gun and he fell towards the gutter and he fell, then the other people turned up and he was apprehended" (T.222.34). 36Mr Cole saw that the gunman had a bag over his shoulder and he saw him pull the pistol out of the bag. He did not see what happened to the bag afterwards. He just saw cable-ties fall out of the bag which ended up on the footpath. When the man pulled the pistol out, they flew out as well. When the others intervened, the man did not let go of the pistol straight away. It took a while for him to release the pistol. The man had the pistol in his right hand and was holding it by the handle. 37Mr Cole was cross-examined by reference to Exhibit J. It was put to him that he could not possibly have observed the matters he described from where he was standing, but Mr Cole adhered to his evidence. He agreed that when giving evidence at the committal hearing, he said that Mr Rawas had jumped on the man's back and was biting and screaming at him and that as he was doing that, the elderly fellow reached into the bag, somehow spun around, turned, flung him off and just shot him from about two feet away. (T.237.24) Mr Cole said that there were about 20 seconds between the two shots. Paul KERR 38Mr Kerr also attended the delicatessen that morning. He was standing on the front step reading the newspaper, facing out across the road when a person brushed past him running in a northerly direction. Seconds later, he saw two persons running up the road one after the other. The person in front was in his sixties, about five feet tall, Caucasian with wrap-around sunglasses. Behind him was an Italian or ethnic gentleman, early sixties, a bit taller than the first man with a stockier build and dark hair. The first male was carrying a black carry bag in front of him like a backpack. They stopped about two metres away from where he was standing. 39Mr Kerr said "The second gentleman caught up with the first gentleman. He put his left hand over down across the shoulder, held him there and brought a machete around with his right hand and just held the gentleman there" (T.262.49). There was a bit of a commotion like wrestling. The second man maintained his hold on the first man for a matter of seconds, after which the man who was restrained started to manoeuvre or worm himself out and push the other person off. "They proceeded to turn around. Wrestle a bit. The first gentleman that was restrained yelled out 'hey hey', reached into a bag. Could see him searching around. Pulled the gun out point to the gentlemen's abdomen or body here [indicated] and just shot him" (T.264.16). 40He saw the man place the barrel end of the pistol right on the stomach of Mr Rawas and then shoot him. Mr Kerr went inside the delicatessen and then heard another bang. "It was like bang, bang. It was that quick." (T.264.45) He saw the "ethnic bloke" hit the ground and at that time, two other persons wrestled the first man with the pistol and had him on the ground. As they were holding the gunman down on the ground, he was protesting and yelling and wanting to get them off. The man still had a pistol in his right hand when they had him sprawled out on the footpath. They were yelling "Let go of the gun, let go of the gun". 41Exhibit J was shown to Mr Kerr and he was asked questions about the surveillance video. He agreed that the whole thing was a very quick event. He agreed that he heard the first shot when he was facing the footpath and heard the second shot as he was turning around, retreating through the door into the delicatessen. He agreed that in his statement to police, he said that he saw a man running with another man about a metre behind him. About two or three metres from the shop, the man with the machete grabbed the man in front with his left arm over the older man's left shoulder or around the top of his left arm, so his fists came into the older man's chest to hold him tight. He brought his right arm around the right side of the older man's head and brought the machete down across his throat, about level with the older man's Adam's apple. He said that the older man pulled himself away and reached into his bag all in one motion. (T.283-284) 42Mr Kerr agreed that he did not see how the first man managed to get free of the grip by the man with the machete. He said that the time between the two shots was one or two seconds. He did not resile from his evidence under cross-examination. Alvin RONG 43Mr Rong was the owner of the delicatessen. He had a good view out of the front window and saw a man in dark clothing trying to get away from Jim, the owner of the Retravision shop. They were close together and it appeared to him that Jim wanted to take control of the man. There was a large knife near the neck of the man, but he could not see who was holding it. He estimated that he was about three metres away from the two men. He went to the back of his shop to call the police. 44As he was walking back from the rear of the shop, he heard two shots. He saw Mr Hines come from the Retravision shop and saw two staff from Retravision holding the other man on the ground. Jim was down on the ground at the time. Benjimein BARKHO 45Mr Barkho was in the process of parking his car when he heard the fighting. He observed a man holding a big machete in his hand and then the fighters came together and went down. He called triple 0. He saw the machete in the old man's hand hitting Mr Hines and Mr Hines tried to get it from him. He could see Jimmy standing there screaming at a guy in front of him when he heard two gunshots. He saw Jimmy fall down on the floor and saw a young guy running away. Mr Barkho tried to follow the young man but was forced to stop at traffic lights. George NUNEZ 46Mr Nunez worked at Retravision as an electrician. He was driving his car along Bunnerong Road, looking for a parking space. He saw a struggle between Jim and another man. Jim was trying to control the man. Jim was holding a machete in his right hand and the man had a pistol in one of his hands, but he was not sure which hand. He thought Jim was trying to use the machete to control the man. When he first saw the struggle, he thought that Kevin and Pedro were also there. By the time he parked his car, Jim had fallen down and another employee had arrived. Mr Nunez was about three - four metres away from where this was happening. The man that was being held down on the ground was not young - between 50 and 60. Mr Nunez said this was the same man he had seen in the struggle with Jim when they were still standing. He said that when he saw Jim he appeared weak and tired and was trying to swing the machete but it was ineffective and he did not hit the other man. Krista HEIKKANEN 47Ms Heikkanen was using the Commonwealth ATM on Bunnerong Road when she could see a few men in a scuffle and heard a gun go off. When she walked closer to the scene, she saw a man from Retravision had another man on the ground and that the gun was still in the man's hand. The man had his hand on the handle part of the gun. She could not recall if he had his finger near the trigger, but he was still just holding onto it. The man from Retravision was using a lot of force to hold his hands down (T.541-3). Under cross-examination she could not recall whether she heard one or two gunshots, although in her triple 0 call she had referred to "gunshots". Darren TAAFFE 48Mr Taaffe was standing in line behind a couple of other people to use the ATM that morning when he saw a scuffle near the delicatessen down the road about 20 metres away. He saw three people together and then one person broke away and was heading in his direction. He described that person as being of small build and aged between 38-40. 49When Mr Taaffe saw the scuffle at first, it appeared that one man came up behind two other men and they were all standing, then one man broke away and the other two wrestled. He thought that he heard a gun as the man went past him. He thought he heard two shots, but he could not really remember. 50Mr Taaffe said that he then saw a man who he recognised as a salesman from Retravision enter the fight. He thought it was still just a scuffle, until he saw there was a gun pointing up the street at them. Other people from Retravision joined the fight. He saw the Retravision men trying to push the gun to the side. They were all on the ground striking the other person on the ground, who was resisting. The man on the ground was shouting "get off me", "leave me alone". Mr Taaffe called triple 0 and told the police what he had seen. On the recording of his call to triple 0, a voice in the background can be heard to say "shit, jimmy's been shot". Lesley PANDOLEON 51There was a further eyewitness, Lesley Pandoleon. She was unavailable to give evidence at the trial. Over objection her police statement, dated 24 December 2002, was read (T.1160) as was the committal transcript of her evidence. 52In her police statement she said that she was walking along Bunnerong Road when she noticed the "first male" running towards her. She observed "the second and third males" running towards her. She could see that the second man had a machete in his right hand and that the third man was running in the same direction immediately behind the second man. Eventually the third man caught up to the second man and grabbed him. When the third man did this: "The second male turned around to face the third male and lift his right hand with the machete in it up in the air like he was going to hit the third male with it. Then the third male wrapped both his arms around the second male before the second male could hit him with the machete. Then they both fell to the ground. They were both rolling around on the ground and the third male appeared to be trying to pin the second male to the ground. The second male was hitting the third male in the upper body with the machete. I could hear the third male yelling out "help me, someone help me". The second male was resisting a lot and appeared to be about to break free of the third male but the third male would not let go of him. At this stage I could see blood on one of their faces, but I can't remember which one. They were about 10 to 12 metres away from me while all this was happening. Then I started to walk towards them because I was concerned for the safety of the third male. I could see he was having great difficulty holding onto the second male. Then I heard a noise that sounded like a loud cap gun going off. I heard the sound twice in quick succession ... The two men were wrestling on the ground. It was then that I saw the second male had some sort of gun in his hand ... then about three males came running from the north on the same footpath ... they jumped in and helped restrain the second male ..." (T.1161) 53At the committal hearing, Ms Pandoleon gave evidence that she got the role of the second and third males muddled up in her statement and that it was the older man who was being chased by a man with an olive complexion carrying a machete in his hands. She also said that she initially did not know what was going on "because this guy's got a knife in his hand and chasing the other one". She said that they stopped running and started hitting each other, eventually falling to the ground and wrestling. She said: "A. The second guy with the machete was hitting the other one and in my opinion it wasn't sharp because he wasn't bleeding profusely or anything. I saw maybe a bit of blood but it wasn't anything bad. Then they just fell down on the ground like wrestling around. Q. Then what happened? They were wrestling down on the ground? A. I heard like a sound like a pop gun go off then I heard it again." (T.1170.44-1171.5) POLICE INVESTIGATION Constable STEEL 54Senior Constable Steel and Constable Hasham were nearby and arrived first on the scene. They observed three males holding a man face down on the ground. He was wearing a blue and red windcheater with a beige shirt underneath, blue jeans and joggers. One of the males, Kevin Hines, was holding a black coloured pistol in his right hand. The appellant was taken into custody. They found $150 neatly folded in the front left pocket of the appellant's jeans. Plastic bags were placed over the appellant's hands to preserve gunshot residue. Shortly thereafter, paper bags were substituted for the plastic bags. Constable MORIATY 55Senior Constable Sharyn Moriarty from the Sydney Crime Scene Section attended the scene at 10am on 24 December 2002. When she arrived, she was shown a plastic bag containing $2000 in cash. A Webley and Scott 6 shot revolver with the hammer cocked was shown to her and there appeared to be blood around the tip of the barrel. Among the items lying on the footpath were two closed plastic cable ties with blood-staining, a pair of damaged glasses with both lenses lying nearby, two further cable ties and several blood-stained areas on the footpath. She observed a large knife with a wooden carved handle and a blade of approximately 40 cms, which appeared to be bloodstained around the middle of the blade. Nearby she observed seven cable ties scattered over the footpath. 56Senior Constable Moriarty made an examination of the Retravision store. Contained therein was a blue, black and yellow Newstar backpack which Mr Haedo had picked up at the scene and taken back to the shop for safekeeping. Inside the bag was a pair of yellow, medium, 'Golden Gripper' gloves, a roll of 3M packing tape and a small razor. In the office area were cable ties, similar to those found scattered on the footpath, various patches of blood were present on the carpet and stairs. A digital television box and a DVD box both had small bullet sized holes in them. Constable FORSYTH 57Detective Senior Constable Forsyth was present on 27 December 2002 with other officers when a search warrant was executed at the appellant's residence in Goulburn, which was videotaped. Items discovered at the premises and tendered in the Crown case included: Exhibit U - 7 pairs of medium Hepworth Flock-lined Golden Gripper gloves; Exhibit V - 2 packets of S 527 cable ties; Exhibit W - 1 loose plastic cable tie, located in lounge room; Detective Forsyth transported those items to the Division of Analytical Laboratories for testing. Mr Van Der WALT 58Mr Van der Walt was a forensic ballistic expert attached to the Forensic Services Group of the NSW Police Service. He attended the post mortem of the deceased. The bullet path through the body of the deceased was determined to be from left to right, front to back and slightly downwards. Constable HEANEY 59Detective Senior Constable Heaney attended Prince of Wales Hospital at about 1.25pm on the afternoon of the incident. He observed Senior Constable Peasley remove the paper bags from over the appellant's hands and take gunshot residue swabs from each hand. He also took a buccal swab from the appellant. The appellant had a deep laceration to each index finger, but there were no cuts to the appellant's neck. Constable FOX 60Senior Constable Fox was a fingerprint expert. He examined a number of items from the scene and the office at Retravision, including the vacuum cleaner, the money found on the appellant and the pistol. Very few of the fingerprints he detected were of suitable enough quality to identify or compare. No fingerprints were recovered that could be matched to the appellant or co-offender. Ms HALES 61Ms Hales was a scientific officer with the Forensic Services Group of the NSW Police. Gunshot residue was detected in the samples taken from the back of the appellant's right hand, the left palm and from the paper bag which had been placed over his right hand. No gunshot residue was detected from the palm of the appellant's right hand, the back of his left hand or the bag placed over his left hand. The gunshot primer residue particles detected were consistent with those recovered from the TV box in the office and the fired cartridge case from the scene of the shooting. Appellant's evidence 62The appellant gave evidence to the following effect. He had received $4000 in cash from friends to place as a bet on horse races at Gosford. His son owned racehorses and one of them, "Misled", would be ready for a race at Gosford on 31 December 2002. The $4000 was to be used to bet on that horse in that race. His friend, Scott Brown, was driving for him because the appellant's eyes were not good enough to do so himself. 63The appellant and Mr Brown left Goulburn for Sydney on Monday, 23 December at about 5am. When in Sydney the appellant was going to visit some friends, who lived at different locations. He believed one of those friends, Glen Martin, worked at Retravision and that is why he was in that location. 64On the morning of the incident, he and Mr Brown had waited in the vicinity of the Retravision store. They had arrived at 8am but the store did not open until 9am. While he was waiting, he saw two men enter the store. He then went over and knocked on the door of the store four different times, but no one came. The appellant walked to the delicatessen when he heard a door slam. He turned around and the taller person whom he had seen enter the Retravision store ran right into him and they both fell to the footpath. When he turned around, he saw another older person with a blue tracksuit running south, so that the two men were running in different directions. 65As the appellant and the taller person hit the ground, a man with a machete came running up and grabbed the taller person and said "you bastard, you robbed my shop". The taller person said "Let go or I'll shoot you". The appellant then saw that the taller person had a pistol in his right hand. The appellant wrapped his arms around the man with the pistol from behind and got his left hand on it. Just then the pistol fired and the man with the machete let go of the person with the pistol. He swung around and smacked the appellant over the head with the pistol. The appellant grabbed his hands to try to keep the pistol pointed away from himself and wrestled for the pistol. The appellant thought another shot was fired while he was wrestling for the pistol. 66The man let go of the pistol and ran off and the Retravision staff were running straight towards him and the person with the machete. As the man ran off, a strap on his backpack half hooked on the appellant's hand and the pistol causing the man to drop it. The man with the machete then grabbed the appellant, as did Mr Haedo the shorter person from Retravision. There was pushing and shoving so that the three of them fell to the footpath. The appellant landed face down with Mr Haedo on top of him. He still had the pistol in his left hand by the barrel back to front under his chest, and could not move his hands. It was the squared edge on the front of the pistol which tore his finger, not the machete. 67Thereafter, all the appellant could recall was being punched and kicked as he tried to push the pistol away. The backpack, the rubber gloves found inside it and the cable ties were not his. He agreed that the rubber gloves found at his house belonged to him. He used the gloves because he suffered from dermatitis. The cable ties at his house belonged to him. He was intending to use the ties to attach some belting to the bottom rail of a fence to prevent his granddaughter's pony from escaping. He denied that the long cable tie found at the house was his. 68Under cross-examination the appellant's evidence was as follows. That morning he had $4000 in his pocket, not $2000. He suggested the police must have stolen the balance. He had a clear recollection of two men loitering outside the Retravision shop. He said he was not wearing a blue tracksuit, but blue jeans with a blue tracksuit top. He denied having a backpack or bag with him. He said that he only had what he was standing up in, as he was going to the eye hospital and then he was going straight home on the train. He had left his two overnight bags in the car with Mr Brown. 69He explained various entries in his diary relating to contacts with Glen Martin at Retravision, staying in Sydney and attending the Sydney Eye Hospital. He said he had booked into a hotel in Kingsford and had also paid for Scott Brown's hotel room. Mr Brown was to use the car to drive the appellant around, which was more convenient and cheaper than using taxis. 70He agreed that the police had painted something on his hands to test for gunshot residue, but he did not have a good memory of the procedure. He agreed that his finger was badly cut, right to the bone, but disagreed that this was from the machete. He said that his DNA was not found on the machete, but had only been found on the pistol. He fell on the pistol, not on the machete. The reason he had gunshot residue on his hands was because he put his arms around the tall guy and over part of the pistol in front of the trigger. 71He agreed that he knew Glen Martin and that they were good friends but denied that he knew that he had ceased working for Retravision in October 2002. He agreed that he had received a telephone call from Mr Martin on 11 October 2002, the day that he ceased working at Retravision but denied that Mr Martin had passed that information onto him. He could not remember the content of the conversations he had with Mr Martin at about that time. 72The appellant agreed that he had hold of the gunman when that person shot Mr Rawas. He had hold of him from behind and had his arms around him. He agreed that any observer would have seen a third man at that time. When the observations of eyewitnesses were put to him, the appellant adhered to his evidence in chief. He said that at no time did he have the machete at his throat. He had his hand around the barrel of the pistol with the idea of pushing it out to the side. He just got his hand on it but he could not push it to the side at all and "bang" it went off. He did not know if the gunman had hold of Mr Rawas, because he [the appellant] was behind him. 73The sequence of events was that he reached around and grabbed the pistol with his left hand and then the pistol went off, and then the gunman hit the appellant on the forehead with the pistol. The appellant reached and grabbed the gunman's hand with the pistol and his wrist with his other hand and tried to keep the pistol turned away from him. The appellant believed that while the pistol was in the air another shot was fired. When Mr Haedo came up and wrapped his arms around the appellant, Mr Rawas was still standing. Mr Rawas was still standing and moved a step forward and grabbed the appellant by the right arm. The appellant had hold of the pistol and when the gunman turned towards the wall to go, the strap on the backpack pulled on the appellant's hand. He explained the residue on his hands because he had his hands right on the pistol, trying to pull it around when it fired. 74The appellant denied that he had heard people saying to him "Let it go, let it go". He denied that he said anything like "You've got me". He denied that he had refused to release the pistol. He had let the pistol go and it was right out in front of him, just as Mr Cole had described it. THE APPEAL Ground 1: The learned trial judge erred in declining the application made by the appellant at his trial that there was "no case" on the charge of murder based on the principle of "felony murder". 75It was common ground that the murder charge preferred against the appellant was based on s 18 of the Crimes Act 1900 (NSW). That section relevantly provided: "18 (1) (a) Murder shall be taken to have been committed where the act of the accused, or thing by him or her omitted to be done, causing the death charged, was done or omitted with reckless indifference to human life, or with intent to kill or inflict grievous bodily harm upon some person, or done in an attempt to commit, or during or immediately after the commission, by the accused, or some accomplice with him or her, of a crime punishable by imprisonment for life or for 25 years. (b) Every other punishable homicide shall be taken to be manslaughter." 76As was made clear in the Crown's opening address, the sole basis upon which the Crown presented the charge of murder to the jury was the final limb of s 18, i.e. that the appellant fatally shot the deceased "during or immediately after the commission" of the offence of robbery while armed with a dangerous weapon - felony murder. 77Towards the end of the trial, a "no case" submission (T.1367-1372) was made on behalf of the appellant to the effect that the shooting of the deceased did not occur "during or immediately" after the armed robbery and consequently, the felony murder count should be dismissed. This application was declined by the trial judge. The application had two parts, which can best be described as the "contextual part" and the "novus actus part". Ground of Appeal 1 raises these same issues. 78In relation to the "contextual part" of Ground 1, the appellant submitted that when the entirety of the events of 24 December 2002 was considered in their true and proper context, the shooting of the deceased did not occur either "during or immediately after" the armed robbery. 79He submitted that by reference to the particular facts of this case, the armed robbery itself was complete at the very moment the offenders, standing in or about the rear office of the store, took physical possession of the money and/or mobile phones and/or notebooks from the bags of the deceased and Mr Haedo respectively. Thus, the shooting could not be said to have occurred on any view "during" the commission of the armed robbery. 80The appellant sought support from the following observation by Barwick CJ in Ryan v R [1967] HCA 2; 121 CLR 205 at 226: "Can it properly be said that either the presentation of the gun or its discharge was done during the commission of the robbery and wounding? Upon the facts the robbery with arms was complete before either the presentation or the discharge of the gun so that the only part of the offence under s 98 during which either of these acts could have been done was the wounding. ..." 81The appellant put the proposition in another way by asking - Had the police apprehended the offenders within the store a split second after they had taken possession of the money and/or mobile phones and/or notebooks, could the offenders have been criminally liable for armed robbery? The appellant submitted that the answer must surely be an affirmative one which confirmed that the offence was undoubtedly complete by that point in time. 82In relation to whether the shooting occurred "immediately after" the commission of the armed robbery, the appellant submitted that the shooting did not occur at a time that could reasonably be described as "immediately after" but that it occurred at some time later. 83The appellant submitted that the robbery took place in the rear office of the store. The robbery was complete the very moment the offenders took possession of the various items of property. By that point in time, the three occupants of the rear office of the store had already been dealt with in that they had been tied up using cable ties. Thereafter, he submitted, the offenders had left the rear office and exited the store premises through the front door. There was no scuffle or the like between the taking of the property and the offenders' exit from the premises via the front door. Rather, the offenders having committed the robbery, made a "clean getaway" from the scene of the crime, namely the store premises. The appellant submitted that from that point in time onwards what occurred did not occur "immediately after" the commission of the armed robbery. This was because the provision when properly construed envisages a scenario where, for instance, an offender accidentally (but voluntarily) shoots someone in the store following the taking of possession of the property. 84The appellant sought support for that proposition from R v Burke [1983] 2 NSWLR 93. There the Court of Criminal Appeal considered the application of self-defence to felony murder. In doing so, Miles J (with whom Street CJ and Nagle CJ at CL agreed) said at 104: "Where the prosecution alleges "felony-murder", or more precisely, the fourth category of murder provided in the Crimes Act, s 18(1), the mental element accompanying the act causing death is irrelevant so long as that act can be said to be the act of the accused. If the mental state of the accused is irrelevant there is, so it seems to me, considerable conceptual difficulty in relating the issue of self-defence (and other matters affecting criminal responsibility such as provocation) to the doctrine of felony murder. That difficulty was I think with respect, recognised by his Honour the trial judge in his reference to Viro's case: In order to raise self-defence the appellant is required to put significant distance between the original aggressive act on his own part, in this case the armed robbery, and the subsequent act causing death, in this case the firing of the rifle. If the firing of the rifle occurred as part and parcel of the armed robbery, the appellant cannot rely upon it as an act done in self-defence. If on the other hand the firing of the rifle occurred after the acts constituting an armed robbery had come to an end, that is to say after the aggressor had broken off his attack, then it cannot be said to have occurred during or even immediately after the crime punishable by penal servitude for life upon which the Crown relies for the purpose of the felony murder rule. Accordingly, in the latter event the appellant would be entitled to an acquittal on the charge of murder, not because he has succeeded on self-defence but because the Crown has not proved felony murder as alleged. Speak of self-defence in these circumstances is to raise a false issue." 85The appellant sought support from R v Hitchins; R v Elliot [1983] 3 NSWLR 318 at 324C where Lee J (with whom Street CJ and Enderby J agreed) said: "In my view counsel's submission should not be upheld. What s98 plainly contemplates is that the act of wounding is to have a relationship both in fact and in time for the robbery and not be regarded as a matter unassociated with that event. But the word "immediately" does not require to be given a meaning which would restrict the application of the section to an event occurring within seconds or minutes of the termination of those particular actions which constituted in law a robbery of the victim. The whole of the circumstances involved in the robbery must be looked at and a decision made against the entire context of the evidence in regard thereto. The evidence in the present case disclosed, or at least the jury were entitled to infer, that the appellants and De Vries, from the time they entered the taxi, intended that the taxi driver should be robbed and attacked with knives and left in a remote spot and that from the time the taxi arrived at Cammeray - if it ever went there of course - until the time it reached Hoxton Park, the driver was under the menace of the knives of the robbers. On this view the jury could regard the whole incident as but one episode involving a robbery with violence which resulted in the death of the taxi driver. It was open to the jury to conclude that the wounding and "dumping" of the taxi driver was an integral part of the plan to rob him and that the fact that he was not stabbed and left in some street in Cammeray had no significance against the facts established in the evidence showing an overall plan which linked his death directly to the robbery. In my view his Honour was correct in leaving the question whether the wounding followed "immediately after" the robbery to the jury as a question of fact for their determination." 86What the appellant sought to extract from R v Hitchins; R v Elliot was that every situation must be analysed in its own context and that ultimately the whole sequence of events in that case was but one episode. That was to be contrasted with the facts of this case where the offenders had well and truly completed the armed robbery and the events which occurred afterwards could not be regarded as in any way part of the earlier episode. 87The appellant sought support for this ground of appeal from the observations of Gleeson CJ (with whom Priestley JA and Campbell J agreed) in R v Attard (NSWCCA unreported, 20 April 1993). At pp 7 -8 Gleeson CJ said: "The present case gave rise to no particular difficulty concerning the application of the words of the statute. The act of the appellant in shooting Nicholas Ikonomopoulos occurred within a minute or so of the wounding of his father, and in the course of a fight between the robbers and their victims which began whilst the robbery was in progress. It occurred in the immediate vicinity of the robbery, and was part of the immediate aftermath of that event. The shooting and the robbery with wounding were so closely linked in point of time, place and circumstance that it could scarcely be doubted that the one occurred immediately after the other." 88The appellant submitted that by reference to those observations, the present case was not one in which it could be said that the shooting occurred "immediately after" the commission of the armed robbery. That was to be contrasted with Attard where the shooting occurred at the end of an episode of fighting which actually began in the course of the robbery and in the shop owner's premises. 89In relation to the novus actus part of this ground of appeal, the appellant submitted that even if the shooting were otherwise to be characterised as having occurred "during or immediately after" the commission of the armed robbery, the actions of the deceased leading up to his exit from the store and thereafter were such that the act causing death (i.e. the shooting which followed in time), did not occur "during or immediately after" the commission of the foundational offence (i.e. the armed robbery) in that the "causal link" or "nexus" between the two events comprising the compound offence of felony murder was broken by the intervening actions of the deceased. 90The basis for this submission was that following the offenders' exit from the premises (i.e. after the foundational crime occurred), the deceased proceeded to take on a role as the aggressor. The appellant submitted that after yelling out "bastards", he ran to the front door armed with a machete in pursuit of the offenders. The bystander witnesses who observed the events on the footpath outside the delicatessen described them as "horrifying" in circumstances where the deceased was holding a machete to the throat of the appellant. There was no suggestion that the appellant, although in possession of a pistol, had been displaying it, making demands or otherwise manifesting an intent to shoot the deceased outside the delicatessen. 91The appellant submitted that the deceased, armed with a machete, had him in a potentially life-threatening situation (over and above that required to execute a citizen's ordinary arrest) and that the shooting occurred as a direct response to the then extreme, excessive and unreasonable actions of the deceased. The appellant submitted that this was consistent with the various observations of the bystanders. 92The appellant relied upon the following evidence to support the submission: (i) The deceased had jumped on the appellant's back and was also biting him and screaming. (ii) The deceased was actually hitting the appellant with his machete. (iii) The appellant was heard to yell out "help me, someone help me". (iv) The appellant went fumbling through his pack for his gun, he not having hitherto held the pistol since leaving the store. (v) The deceased was still holding the machete at the time that he was shot. (vi) The deceased lunged (whilst still holding the machete) and grabbed the appellant even after he was shot. 93The appellant submitted that any "causal link" or "nexus" between the foundational crime and the act causing death, which together comprised the compound offence, was effectively severed by virtue of the excessive acts of the deceased. He submitted that it was neither necessary nor reasonable for the deceased to create a situation in which he needed to attack the throat of the appellant with a machete on the footpath outside the delicatessen. He submitted that in doing so, the deceased created a new situation and thereby cut the required "causal link" or "nexus" between the commission of the armed robbery offence and the act causing death. 94The appellant sought to support that proposition by reference to Royall v R [1991] HCA 27; (1991) 172 CLR 378 at 412 where Deane and Dawson JJ said in relation to criminal liability: "... However, in many cases of murder, particularly where a single act such as shooting or stabbing is alleged, it may be unnecessary to elaborate the requirement that the death should have been caused by the accused. In other cases it may be appropriate to point out that the causal chain must not be broken by some intervening event which operates to relieve the accused of responsibility, but such a direction would ordinarily be better put by reference to the actual facts of the case than couched in abstract terms. If, in a case of fright or self-preservation, the victim over-reacts to the threatening acts or words of the accused, that may be sufficient to break the chain of causation. ..." 95The appellant also relied upon the following statements of principle in the self-defence cases to support the submission: "In my opinion, in Australia the fact that the person raising self-defence was the aggressor is an important consideration of fact, but not a legal barrier to the success of the plea. The matter may be regarded in a similar light to a failure to retreat. It is obvious enough that a person cannot rely upon the plea of self-defence unless the violence against which he sought to defend himself was unlawful. If, therefore, one man makes a violent attack upon another with intent to rob him, and the man attacked defends himself, using no more force than is reasonably necessary, the original assailant cannot be said to be acting in self-defence in trying to overcome the other's resistance, since that resistance was lawful. However, if the original assailant has desisted from his attack, and his intended victim no longer needs to defend himself, and cannot reasonably believe that he is still in danger, but nevertheless takes the offensive and out of anger or revenge himself becomes the attacker, the original assailant is not obliged to let himself be killed or injured without any attempt at resistance. Nevertheless, in such a case it is difficult to see how, as a matter of fact, the conduct of the aggressor, which commences as a criminal assault with an intent to commit a serious crime, can become transmuted in split seconds into lawful self-defence, unless the aggressor has clearly broken off his attack. In such circumstances the fact that he did not retreat when he had the opportunity to do so assumes a special significance." (Viro v R [1978] HCA 9; 141 CLR 88 - Gibbs CJ at 116 -7) "Where an accused person raising a plea of self-defence as the original aggressor and induced or provoked the assault against which he claims the right to defend himself, it will be for the jury to consider whether the original aggression had ceased so as to have enabled the accused to form a belief, upon reasonable grounds, that his actions were necessary in self-defence. For this purpose, it will be relevant to consider the extent to which the accused declined further conflict and quit the use of force or retreated from it, these being matters which may bear upon the nature of the occasion and the use which the accused made of it. Indeed, even in circumstances in which the accused was not the original aggressor, retreat in the face of a threat of violence before resort to force may be relevant to the belief of the accused or the reasonableness of the grounds upon which the accused based his belief. There is, however, no longer any rule that the accused must have retreated as far as possible before attempting to defend himself. It is a circumstance to be considered with all the others in determining whether the accused believed upon reasonable grounds that what he did was necessary in self-defence ..." (Zecevic v Director of Public Prosecutions (Vic) [1987] HCA 26; 162 CLR 645 (Wilson Dawson and Toohey JJ at 663.)) 96By reference to those statements of principle, the appellant submitted that the acts of the deceased had the common sense and practical effect of operating as a supervening event in relation to the charge of felony murder, such that the "nexus" between the shooting and the armed robbery was broken; or expressed differently, the shooting did not occur "immediately after" the commission of the armed robbery, but occurred in a context disconnected from the armed robbery. Consideration 97For the appellant's contextual submission to succeed, this Court would have to find that the facts of this case could not come within the statutory framework of s 18(1)(a), i.e. the shooting could not have occurred "during or immediately after" the armed robbery. There is no statutory definition of the phrase "during or immediately after". Some guidance, however, has been provided as to the interpretation of the phrase by the cases. 98As the appellant pointed out, this Court considered the phrase in R v Hitchins and Elliot. The issue arose because a taxi had been hailed by the offenders at Cammeray and subsequently the body of the taxi driver was found stabbed to death at Hoxton Park. It was not known at what point in the journey the killing had occurred. A submission similar to that made in this appeal was raised by the appellants in that matter. At 324B-E Lee J said: "The submission of the applicants was thus a submission that if the robbery took place at Cammeray and the killing at Hoxton Park it was not open to the jury to find that the wounding took place "immediately after" the robbery and that accordingly his Honour's direction that the jury could so find was erroneous. Although there was no precise evidence given as to the distance from Cammeray to Hoxton Park, it was agreed between counsel before us that it would probably take at least about three-quarters of an hour to drive there from Cammeray. In my view counsel's submission should not be upheld. What s98 plainly contemplates is that the act of wounding is to have a relationship both in fact and in time to the robbery, and not be regarded as a matter unassociated with that event. But the word "immediately" does not require to be given a meaning which would restrict the application of the section to an event occurring within seconds or minutes of the termination of those particular actions which constituted in law a robbery of the victim. The whole of the circumstances involved in the robbery must be looked at and a decision made against the entire context of the evidence in regard thereto." 99What I take from that passage is that there is a temporal component and a contextual component associated with the phrase. Insofar as the temporal component is concerned, the evidence is that the time between the offenders leaving the office and the shooting taking place was somewhere between 1 - 3 minutes. That estimate is supported by the fact that the distance between the office where the deceased and other employees were left and the delicatessen where the shooting took place was about 30 metres. However, as Gleeson CJ said in Attard, the overarching consideration is the wording of the statute. 100Guidance is also provided by Gleeson CJ in Attard at pp 6-7 where his Honour said: "Ultimately the point of substance involved in this aspect of the appeal concerns the directions given by Sharp J to the jury as to how they were to approach the task of deciding whether the act of the appellant causing the death of the victim occurred "immediately after" the robbery with wounding. His Honour pointed to the requirement that the act be done "during or immediately after" the commission of the felony in question and he told the jury that what was involved was a question of fact and degree for them to determine in the light of all the evidence. He did not elaborate much upon the meaning of the expression "immediately after", but he drew the jury's attention to the facts and circumstances relevant to their decision on that point in the case. His Honour said that there was no hard and fast rule as to the meaning of "immediately" but it meant much the same as "forthwith". That direction was taken from the observation of Cockburn CJ in The Queen v The Justices of Berkshire (1878) 4 QBD 469 at 471. This subject was considered by Miles J in R v Burke (1983) 2 NSWLR 93 at 103-4 and Lee J in R v Hitchins; R v Elliot [1983] 3 NSWLR 318 at 324. The history of felony murder was discussed by Windeyer J in Ryan v R (1967) 121 CLR 205 at 239-246. The observations of Miles J were made in the context of an examination of the relationship between the concepts of felony murder and self-defence, and his Honour's references to the aggression and to breaking off an attack had to be understood in that light. What Lee J called the relationship in time and fact between the felony and the killing is governed by the language of the statute. The words "immediately after" clearly add something of significance to the word "during", but their precise ambit will fall to be determined in the light of the facts and circumstances of the individual case. It is not difficult to imagine borderline cases where the relationship in fact in time between the felony and the killing is such that a decision as to whether the latter occurred "immediately after" the former could involve a difficult judgment on a matter of degree. Even in such cases, it may be doubted whether there is much to be gained by instructing a jury in terms which substitute for the language of the statute some other verbal formula whose meaning is no more clear. There may be a danger in doing so." 101What emerges from Attard is that the issue of whether or not the act was done "during or immediately after" the armed robbery is a question of fact for the jury. It is a question of fact in the same way that "grievous bodily harm" has no fixed legal meaning and should be left to the jury. These are situations where there may be no doubt whatsoever as to what the act is, what the injury is, or what the event is, but because these phrases lack a fixed legal meaning their application to the facts of a particular case should be decided by the jury. 102What the jury could take into account on the facts of this case was that the act of the appellant in shooting the deceased occurred within 1 - 3 minutes of the armed robbery. It occurred in close proximity to where the armed robbery took place and was part of the immediate aftermath of that event. The jury could have found that the shooting and the armed robbery were so closely linked in point of time, place and circumstance that it could scarcely be doubted that the one occurred immediately after the other. 103Those were findings which were well open to the jury on the facts. That being so, it would have been an error on the part of the trial judge to have taken that issue away from the jury on a no case to answer basis. The jury was entitled to consider whether the facts as they found them came within the phrase "immediately after". This part of Ground of Appeal 1 has not been made out. 104The second part of the first Ground of Appeal, which has been described by the appellant as the "novus actus" submission, in reality raises the same issue as has just been discussed. It is simply another way of challenging the proposition that the shooting occurred "during or immediately after" the armed robbery. 105The formulation of the submission is contrary to the well established principle stated in R v Munro (1981) 4 A Crim R 67 at 69 where Street CJ (with whom Nagle CJ at CL and Slattery J agreed) said: "The second ground argued is summarised as involving a contention that there must be a causal connection between the felonious wounding and the subsequent death. Section 96 provides for penal servitude for life where there is an offence committed under s 95 and the person who commits it also wounds the victim. The argument has been developed by reference to the decision of the High Court in Ryan (1967) 121 CLR 205 and to discussions in academic writing. The argument, in my view, overlooks both the clear terms of the relevant sections and the accepted approach to problems of this nature. As for example, in the High Court in Mraz (1955) 93 CLR 493. Section 18, in the relevant portion, provides that: "Murder shall be taken to have been committed where the act of the accused ... causing the death charged, was done ... during or immediately after the commission, by the accused ... of the crime punishable by death or penal servitude for life." In the present case the act of the accused causing death was the striking. It clearly enough was not the wounding, in as much as, although there was some wounding in the sense of broken skin in the facial area, the cause of death was shown by medical evidence to have been the result of the bruising and fractured ribs. There was relevant requirement of a causal link between the felony relied upon as constituting the homicide one of felony murder and the death other than stated in s 18(1)(a) itself, that is to say the act of the accused causing death was done during or immediately after the committing of a life sentence crime. Clearly enough if it were the wounds inflicted in the committing of a crime under s 96 which led to the death then that would amount to felony murder. But I fail to see that this is an essential requirement." 106That statement of principle was confirmed by this Court in R v Spathis; R v Patsalis [2001] NSWCCA 476 at [312] - [313] where Heydon JA (with whom Carruthers and Smart JJ agreed) said: "312 Secondly, it was contended that the trial judge failed properly to direct the jury regarding the causal relationship to be established by the Crown before they could convict either accused of felony murder. Accepting that no specific intent is required for proof of felony murder, the Crown was still required to establish a causal relationship between the underlying felony and the resulting unlawful death. This, it was argued, required a direction to the jury that the death of the victim was a foreseeable result of the underlying felony, i.e., armed robbery with wounding. Again, this submission is quite inconsistent with established authority that the act causing death need not be in furtherance of the common unlawful purpose: see Sharah at 297-298 citing R v Johns [1978] 1 NSWLR 282, particularly at 294-295. 313 Twenty years ago in R v Munro (1981) 4 A Crim R 67 this Court (Street CJ, Nagle CJ at CL and Slattery J) expressly rejected the proposition that there should be recognised some requirement of foreseeability and causal link between the foundational offence and the act causing death. Nothing has been put before this Court to justify the submission that Munro was wrongly decided." 107The reliance on the self-defence cases to support the appellant's submission on this issue is not helpful. The facts of those cases are far removed from those considered here. More importantly, those cases raise issues which were properly rejected as irrelevant by Miles J in R v Burke (see [80] hereof). As Miles J made clear at the conclusion of that citation, the issue is not one of self-defence or even novus actus, but whether the facts as found came within the relevant provisions of the statute. 108There is another difficulty with the "novus actus" submission. It depends upon selective extracts from the evidence. The facts relied upon to justify the submission are those which suggest that the deceased immediately before the shooting acted in an aggressive way motivated by revenge and was attempting to attack the appellant in a way which invited or required a defensive reaction by him. The evidence as a whole does not support such a conclusion. 109The evidence that the deceased jumped on the appellant's back and was biting him and screaming came from one bystander witness only (Mr Cole). It was not the evidence given by him at trial but that given in the committal hearing. It was contrary to the observation of all of the other bystanders, who referred to the deceased attempting to control or restrain the appellant by the use of the machete, in particular that he was holding the machete at or to the appellant's throat. 110The evidence that the appellant was heard to yell out "help me, someone help me" came from the statement of Ms Pandoleon, who was unavailable to give evidence and be cross-examined at the trial and whose evidence on most issues was inconsistent with that of every other bystander. She freely conceded in her evidence in the committal proceedings that she was confused as to the identity of the various persons she observed. 111The reference to the appellant fumbling through his bag for his pistol was from a statement of Mr Cole. It is taken out of context and does not accurately set out the effect of his evidence. 112The full extract from paragraph 18 of the statement was: "18 As he said this, he reached into the black back pack that he still had in front of him and pulled the gun out. He just stuck his hand in, his right hand I think and was fumbling around as if he was feeling for something. Then he pulled the gun out." In his oral evidence, Mr Cole said: "He just took the gun out of the bag and just went "boom" and as he was doing that, reached into the bag, somehow spun around, turned, flung him off and just shot him from about two feet away." (T.237.9) The evidence of Mr Kerr on this subject was: "[He] reached into a bag. Could see him searching around. Pulled the gun out, point to the gentleman's abdomen or body here [indicated] and just shot him." (T.264.18) 113There was no evidence that the deceased was actually striking at the appellant with the machete. Apart from that, the most significant factual difficulty with the submission is that the appellant suffered no injuries to his neck, or any other part of his body, except his index fingers. This is inconsistent with the proposition that he was being hit or struck with the machete, or that the deceased was attempting to strike him with the machete, as distinct from threatening him with it so as to restrain him and prevent him from escaping. Had the deceased intended to use the machete to attack the appellant, one would have expected the appellant to have sustained wounds consistent with that intention. 114Accordingly, it was well open to the jury to find that the shooting occurred "during or immediately after" the armed robbery. It follows, therefore, that the appellant's application at trial that there was "no case" on the charge of felony murder was properly rejected by the trial judge. This ground of appeal has not been made out. Ground 2: The learned trial judge erred in his directions to the jury on the issue of the appellant's liability to be convicted of murder on the basis of felony murder. 115In his summing up to the jury, the trial judge said: "Firstly I deal with the ingredients of the crime of murder as charged. You will recall that the Crown has referred to the charge of murder brought against both accused to be considered separately, as felony murder. ... The crime of murder as alleged in this case is committed where the act of the accused which caused the death of the deceased was done by him during or immediately after the commission by the accused or some other accomplice with him of a crime such as robbery while armed with a dangerous weapon, or indeed, an attempt to commit such a crime ... (S/U 19) ... Logically, members of the jury, the first thing that the Crown must establish is that the accused or an accomplice committed a crime of the type of robbery while armed with a dangerous weapon. ... In the present case the Crown puts to you, you would have no doubt that whoever committed the crime of armed robbery with a dangerous weapon, were accomplices in the usual sense of the word. Indeed, members of the jury, though I'll come to this in greater detail later on, there has really been no argument in this case that whoever committed the crime of armed robbery with a dangerous weapon, is guilty of the crime of murder as well." (S/U 20-21) ... Members of the jury, they are the ingredients of the crimes with which both accused stand charged. It is for the Crown to establish those ingredients beyond reasonable doubt. As I have indicated, there is not much issue that whoever it was who entered the Retravision store at about 9 o'clock on 24 December 2002, was guilty of all those crimes. The question is: Has the Crown proved beyond reasonable doubt that it was either (a) Patrick Hudd or (b) Scott Brown who committed those crimes? (S/U 24) ... Now members of the jury, the Crown case against the accused Hudd is that he, having taken part in the crime of robbery while armed with a dangerous weapon, namely a .38 revolver, shot and killed James Rawas during or immediately after the commission of that crime. That, simply put, is the Crown case. The duration of that period or immediately after would extend to such time as somebody had made good a total escape from the scene of the crime so you may take it that, if you are satisfied that it was the accused Hudd who shot Mr Rawas outside Bon's Delicatessen that that would have happened during or immediately after the commission of the crime of armed robbery provided, of course, that you are satisfied it was Mr Hudd who took part in the robbery and it was Mr Hudd who did the shooting." (S/U 31) 116The appellant submitted that although his Honour had rejected his "no case" submission, it was still necessary in order to convict for felony murder that the jury be actually satisfied that the act causing death occurred "during or immediately after" the foundational crime. The appellant submitted that the jury was prevented from carrying out that function because the effect of the directions which the trial judge gave was to take away this consideration. 117The appellant submitted that regardless of how his defence case was put at trial, the Crown still had to prove that the act causing death did occur "during or immediately after" the commission of the foundational crime and that this issue (following the rejection of the "no case" submission), needed to have been properly left to the jury. The appellant submitted that the failure to effectively do so constituted a substantial miscarriage of justice. 118The appellant made this submission because of the way in which his case was put at trial. His counsel early in his address to the jury said: "Let me make some banal observations. Where this murder occurred - and there is no doubt that a murder did occur; it is not Mr Hudd's case that a murder did not occur; it's simply that he did not commit it - was in the Matraville community. The person who was a victim of this gruesome murder was a popular man there is no doubt, because it's common ground, that immediately after, or at the time - it's a matter for you just what happened - but certainly immediately after a man was caught with a gun. It makes a lot of sense to say that that person with the gun caught straight after is the guilty person. I don't shrink from that. It is a heavy point which the Crown must have, and does have and properly has, nothing improper about that and which your instincts at first blush will tell you "well, this bloke must have done it. No doubt about that". But at this moment we're not looking at the evidence". (T. 1450.41) Consideration 119The question of whether the act causing death occurred "during or immediately after" the armed robbery was a matter which should have been left to the jury. This is so for the reasons set out in relation to Ground of Appeal 1. It was an issue which should not have been taken away from the jury. The way in which his Honour summed up in effect precluded the jury from turning its mind to this issue. His Honour's failure to leave this matter to the jury did give rise to error and to a miscarriage of justice. 120That does not end the matter. The Court is required to assess the effect of the miscarriage of justice, i.e. does the proviso apply? 121Section 6(1) of the Criminal Appeal Act 1912 provides: "6(1) The court on any appeal under section 5 (1) against conviction shall allow the appeal if it is of opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported, having regard to the evidence, or that the judgment of the court of trial should be set aside on the ground of the wrong decision of any question of law, or that on any other ground whatsoever there was a miscarriage of justice, and in any other case shall dismiss the appeal; provided that the court may, notwithstanding that it is of opinion that the point or points raised by the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred." 122Cases such as Weiss v R [2005] HCA 81; 224 CLR 300, Gassy v The Queen [2008] HCA 18; 236 CLR 293 and Cooper v The Queen [2012] HCA 50; 87 ALJR 32 make it clear that an erroneous direction to a jury does not without more, mean that the proviso cannot apply. The primary consideration is whether "no substantial miscarriage of justice has actually occurred", i.e. the words of the statute have to be applied (Gassy at [32] - [34] (Gummow and Hayne JJ)). 123The recent decision of the High Court in Cooper confirmed that the approach to be followed by a Court of Criminal Appeal when considering the proviso was that prescribed in Weiss. In Weiss the task of an appellate court was described as follows: "35 The fundamental task committed to the appellate court by the common form of criminal appeal statute is to decide the appeal. In so far as that task requires considering the proviso, it is not to be undertaken by attempting to predict what a jury (whether the jury at trial or some hypothetical future jury) would or might do. Rather, in applying the proviso, the task is to decide whether a "substantial miscarriage of justice has actually occurred". " 124Weiss identified three fundamental propositions: "39 Three fundamental propositions must not be obscured. First, the appellate court must itself decide whether a substantial miscarriage of justice has actually occurred. Secondly, the task of the appellate court is an objective task not materially different from other appellate tasks. It is to be performed with whatever are the advantages and disadvantages of deciding an appeal on the record of the trial; it is not an exercise in speculation or prediction. Thirdly, the standard of proof of criminal guilt is beyond reasonable doubt." 125When taking into account those three fundamental propositions, Weiss provided the following guidance. "40 Reference to inevitability of result (or the converse references to "fair" or "real chance of acquittal") are useful as emphasising the high standard of proof of criminal guilt. They are also useful if they are taken as pointing to "the 'natural limitations' that exist in the case of any appellate court proceeding wholly or substantially on the record". But reference to a jury (whether the trial jury or a hypothetical reasonable jury) is liable to distract attention from the statutory task as expressed by criminal appeal statutes, in this case, s 568(1) of the Crimes Act. It suggests that the appeal court is to do other than decide for itself whether a substantial miscarriage of justice has actually occurred. 41 That task is to be undertaken in the same way an appellate court decides whether the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported having regard to the evidence. The appellate court must make its own independent assessment of the evidence and determine whether, making due allowance for the "natural limitations" that exist in the case of an appellate court proceeding wholly or substantially on the record, the accused was proved beyond reasonable doubt to be guilty of the offence on which the jury returned its verdict of guilty. There will be cases, perhaps many cases, where those natural limitations require the appellate court to conclude that it cannot reach the necessary degree of satisfaction. In such a case the proviso would not apply, and apart from some exceptional cases, where a verdict of acquittal might be entered, it would be necessary to order a new trial. But recognising that there will be cases where the proviso does not apply does not exonerate the appellate court from examining the record for itself. ... 43 There are, however, some matters to which particular attention should be drawn. First, the appellate court's task must be undertaken on the whole of the record of the trial including the fact that the jury returned a guilty verdict. The court is not "to speculate upon probable reconviction and decide according to how the speculation comes out". But there are cases in which it would be possible to conclude that the error made at trial would, or at least should, have had no significance in determining the verdict that was returned by the trial jury. The fact that the jury did return a guilty verdict cannot be discarded from the appellate court's assessment of the whole record of trial. Secondly, it is necessary always to keep two matters at the forefront of consideration: the accusatorial character of criminal trials such as the present and that the standard of proof is beyond reasonable doubt. 44 Next, the permissive language of the proviso ("the Court ... may, notwithstanding that it is of opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal ...") is important. So, too, is the way in which the condition for the exercise of that power is expressed ("if it considers that no substantial miscarriage of justice has actually occurred"). No single universally applicable description of what constitutes "no substantial miscarriage of justice" can be given. But one negative proposition may safely be offered. It cannot be said that no substantial miscarriage of justice has actually occurred unless the appellate court is persuaded that the evidence properly admitted at trial proved, beyond reasonable doubt, the accused's guilt of the offence on which the jury returned its verdict of guilty." 126On a review of all of the facts in this case, and applying those principles, the contested factual issues were relatively narrow. There was the issue of the identity of the person who shot the deceased and whether the evidence established that the shooting occurred during or immediately after the armed robbery. The evidence was overwhelmingly to the effect that the appellant was the person who shot the deceased. I am also satisfied beyond reasonable doubt that the evidence satisfies the statutory requirement of s 18(1)(a) of the Crimes Act in that the shooting did take place immediately after the armed robbery. I have reached that decision keeping in mind that the task is an objective one, that there are limitations on a review of the facts based on documentary material and that the standard of proof is beyond reasonable doubt. 127I appreciate that a decision as to whether the shooting occurred "immediately after" the armed robbery involves a judgment on a matter of degree. There was, however, substantial unanimity on the part of the eyewitnesses as to what they saw. What is decisive in this case is that the shooting occurred within 1 - 3 minutes of the armed robbery having taken place. It occurred in close proximity to the robbery, i.e. approximately 30 metres away and was part of the immediate aftermath of that event. The actions of the deceased clearly involved an attempt to detain or apprehend the appellant while he was making his escape from the scene of the armed robbery with the proceeds of that robbery. There was a direct relationship between that event and the armed robbery. Based on the whole of the evidence in this case the shooting and the armed robbery were so closely linked in point of time, place and circumstance that it could scarcely be doubted that the one occurred immediately after the other. 128It follows that although this ground of appeal has been made out, no substantial miscarriage of justice has occurred and this ground of appeal should be dismissed. Ground 3: The verdict of the jury on the charge of murder is unreasonable having regard to the evidence on that charge: s6(1) Criminal Appeal Act 1912 (NSW) 129No written submissions were addressed to this Ground of Appeal nor was the ground expressly addressed in oral submissions. The effect of the ground of appeal is that the evidence did not, as distinct from could not (Ground of Appeal 1), establish a breach of s 18(1)(a) of the Crimes Act. For the reasons set out when applying the proviso to Ground of Appeal 2, this ground of appeal has not been made out and should be dismissed. APPELLANT'S ADDITIONAL CONVICTION GROUNDS OF APPEAL Ground 1: His Honour erred in admitting that portion of the evidence of Messrs Kerr and Cole insofar as it relates to their stated observations of: (a) The appellant shooting the victim; (b) The appellant holding a gun prior to the shooting of the victim. (c) The appellant wrestling with the victim prior to the shooting. 130In support of this Ground of Appeal, the appellant sought the leave of the Court to rely upon "fresh" evidence in the form of a "cleaned up" DVD, which purported to be a copy of Exhibit J in the trial. Exhibit J comprised approximately four minutes of video from a surveillance camera positioned inside the delicatessen. The "cleaning up" of the DVD apparently involved an attempt to depict more clearly what had occurred outside the window of the shop. The end result does not show any detail of persons depicted, but rather they appear in profile. In addition, it is very difficult to relate the images depicted on the "cleaned up" DVD to those shown on Exhibit J. No evidence was called, either orally or by way of affidavit, to prove in what respects the DVD had been altered, what was sought to be achieved by the alteration and why such alterations could not have been made before trial. A further difficulty is that the "cleaned up" DVD appeared to be different in significant respects to Exhibit J. 131The tender of the "cleaned up" DVD should be rejected. It provides less assistance as to what was happening both inside and outside the shop then Exhibit J. More importantly, all of the evidence relating to video material in the trial was based on Exhibit J and it is simply impossible to relate that evidence to the "cleaned up" video. The probative value of the "cleaned up" DVD in the absence of further evidence is problematic at best. As a result, even if it were admitted it would have no effect on the outcome of the appeal. 132Accordingly, I propose to assess the appellant's submissions in relation to this ground of appeal by reference to Exhibit J not the "cleaned up" DVD. 133In order to understand the submissions prepared by the appellant, it is necessary to say something about what is shown on Exhibit J. It is only the first twenty seconds of the video which are relevant to the submissions. The first few seconds of the video are jerky and seem to depict events at an accelerated rate of movement. The video camera appears to be positioned at the rear of the shop and covers the cash register and service counter primarily but also picks up the door to the delicatessen. It incidentally picks up the window of the delicatessen in such a way that movement on the footpath outside the window can be seen but not clearly and not in any detail. 134In the early seconds, Messrs Cole and Kerr can be seen at the door of the delicatessen when something occurs which drew their attention to the footpath outside the shop. The nature of that event cannot be determined from the video. It is possible that what caught their attention was the firing of the shot because both men quickly move from the doorway back into the shop. There is no indication as to the timing of any of these events. 135The effect of the submissions in support of this ground of appeal is that, by reference to the timing when various events took place during the first twenty seconds of the video, Messrs Cole and Kerr could not have seen the events in relation to which they gave evidence and in particular, have seen the appellant shoot the victim. An important part of the appellant's submissions was that Mr Hines could be identified in the video at the 10 second mark as coming to the aid of Mr Haedo. Since it was common ground that the shot had been fired before Mr Haedo had even reached the appellant, and well before Mr Hines emerged from the Retravision shop, the evidence of Messrs Cole and Kerr must be incorrect. Consideration 136The difficulty with this and the significant number of related submissions is that they are based on a false premise. It is simply not possible from the video to identify with any degree of precision what is happening outside the window of the delicatessen. Firstly, the area of footpath outside the window picked up by the camera is restricted and because of the position of the camera, somewhat distorted. It is not possible to identify what actions are taking place and who is moving outside the window. It is not possible to determine precisely where Messrs Cole and Kerr are looking at any point in time. What is clear from the video is that both of them were ideally positioned to see what was happening outside the delicatessen at the relevant time. 137The submissions in support of this ground are based on assumptions which are not established. Those assumptions include the identity of persons outside the window of the shop, what those persons are doing, and what Messrs Cole and Kerr could see at any point in time. The simple fact is that Exhibit J does not support the submissions made. 138This ground of appeal has not been made out. Ground 2: The Court erred in admitting evidence of the gunshot residue as evidence of the appellant having used the gun to murder the victim. 139Senior Constable Steel arranged for plastic bags to be placed over the appellant's hands when he was taken to the hospital for treatment. Detective Senior Constable Forsyth arranged for the plastic bags on the appellant's hands to be replaced with paper bags and took possession of the plastic bags. Detective Senior Constable Heaney observed the paper bags being removed from the appellant's hands and gunshot residue swabs being applied. Ms Hales, scientific officer, gave evidence as to the extent of the gunshot residue which was detected on the appellant's hands and from the paper bag which had been placed over his right hand. 140This evidence was clearly relevant to the issue of whether or not the appellant had been holding the pistol when it discharged. The evidence was therefore admissible. It is true that the appellant offered an alternative explanation for how gunshot residue came to be on his hand. He said that this occurred when he took the pistol away from the gunman. That factual dispute, however, does not affect the admissibility of the evidence. Accordingly, this ground of appeal has not been made out. ADDITIONAL GROUNDS 141Although this is not reflected in the additional Conviction Grounds of Appeal, included in the appellant's written submissions are 10 pages of submissions entitled "Additional Grounds". Those submissions identified particular pieces of evidence given primarily by the bystander witnesses and sought to identify inconsistencies. It was then submitted that these inconsistencies rendered the evidence unreliable. These issues were fully ventilated by the appellant's counsel at trial, who identified and put to the jury a number of such inconsistencies. There is a large element of repetition in the inconsistencies identified in the "additional grounds". 142The acceptance or otherwise of the evidence of the bystander witnesses was a matter for the jury. There are no matters identified in the "Additional Grounds" which are of such significance, either individually or in combination, as would cause this Court to set aside the jury verdict on the ground that it was unreasonable or cannot be supported having regard to the evidence. On the contrary, the matters identified are of peripheral importance and marginal relevance. 143The identification evidence to the effect that the appellant was the person who shot the deceased is overwhelming. None of the eyewitnesses saw the fourth person asserted by the appellant to have been the gunman. None of the eyewitnesses supported the appellant's evidence that having disarmed the gunman he was holding the pistol by the barrel. They were unanimous in their evidence that the person struggling was holding the pistol by the handle. The only disagreement between the eyewitnesses was whether he was holding the pistol in his right hand. Most said he was, whereas others were not sure. THE SENTENCE APPEAL Ground 1: The learned sentencing judge erred in finding that: (a) This was a cold blooded shooting effected in an attempt to avoid apprehension and (b) That the concept of "self defence" had no application Ground 2: The sentence imposed in respect of Count 1 was manifestly excessive. Ground 2A: The total sentence is excessive in the light of the applicant's medical condition. Ground 2B: Fresh evidence. Ground 3: The learned sentencing judge failed to apply the principles of totality. Ground 4: The learned sentencing judge erred in failing to find special circumstances. 144As a preliminary issue, the appellant sought leave to rely upon Grounds of Appeal 2A and 2B. The fresh evidence comprised a medical report, plus x-ray reports, concerning the health of the appellant. The effect of these reports was that the appellant was diagnosed with lung cancer in October 2012. A CT scan carried out in January 2013 showed that the cancer was of a particularly aggressive kind, so that doctors at the Prince of Wales Hospital discontinued chemotherapy treatment. He is currently in the palliative care unit of the Long Bay Prison Hospital. His life expectancy was described as "short to medium term" in January 2013. That assessment has not been further defined. 145The Crown opposed the admission of this material as fresh evidence on the basis that it was not sufficiently specific as to the nature of the appellant's condition and his life expectancy. 146The Court determined that the material did constitute "fresh" evidence and should be admitted. It was evidence that was not available at the time when the appellant was sentenced and it was capable of having a significant effect on his sentence appeal (R v Bailey (1988) 35 A Crim R 458; R v Ehrenberg (NSWCCA, unreported 14 December 1990). On the basis of the admissibility of the fresh evidence, the Court allowed the appellant to amend his Grounds of Appeal to rely upon Grounds 2A and 2B. Ground 1: His Honour erred in finding that (a) this was a cold-blooded shooting effected in an attempt to avoid apprehension and (b) that the concept of "self-defence" had no application. 147The appellant relied upon the matters which had been raised in relation to the "nexus part" of Ground of Appeal 1. He submitted that the shooting occurred in a context where the deceased was armed with a machete and had the appellant in a potentially life-threatening situation and that the shooting occurred as a direct response to the then extreme, excessive and unreasonable actions of the deceased. 148The appellant submitted that in those circumstances, it was not open to the sentencing judge to find that the case involved "a cold-blooded shooting effected in an attempt to avoid apprehension" or that the concept of "self-defence" had no application. Consideration 149His Honour's finding as to how the shooting occurred was: "Essentially what Peter Cole described is that he saw Mr Rawas seize Hudd, Mr Rawas then held the machete he was holding to Hudd's neck. Somehow Hudd managed to spin away from Mr Rawas and put his hand inside the bag slung on his body, pull out the revolver and shot Mr Rawas at point blank range in the stomach. While Mr Cole deposed that shortly after a second shot was fired by Hudd to Mr Rawas' body the reality is that the second shot which was fired was fired upwards passing through the awning over the footpath." (ROS 7) "Dr Gumbert, on Hudd's behalf, made a number of submissions in mitigation. These included: (a) That I not accept Mr Cole's version of events. With the qualification that I mentioned above, I do; (b) that the shooting of Mr Rawas occurred in the agony of the moment. Accepting as I do Mr Cole's testimony I find that this was a cold-blooded shooting effected in an attempt to avoid apprehension; (c) While self-defence was not an available concept in the circumstances of this murder the reality was that Hudd was being attacked by a man armed with a machete at the critical time. Accordingly, as the submission goes, this is a relevant factor which should on sentence lead to diminution of the period I would otherwise impose. It is true, as I have found, that Mr Rawas pursued Hudd and had armed himself with a machete. However, Mr Rawas knew that Hudd was armed with a revolver and, indeed, had fired during the course of the robbery. If the concept of the self-defence had any application here it would have arisen if Mr Rawas had wounded or killed Hudd during the confrontation not the reverse." (ROS 13-14) 150I do not understand the sentencing judge to have used the term "cold-blooded" as involving some kind of premeditation. What his Honour was clearly focusing on was the evidence of Messrs Kerr and Cole to the effect that the appellant freed himself in some way from the deceased's grasp so that they were standing approximately a metre apart and then deliberately removed the pistol from his bag and shot the deceased. 151Having freed himself from the deceased's grasp, the appellant appears to have done nothing to escape, but to have deliberately accessed the pistol and fired it, not to wound or threaten the deceased, but into the stomach. In that sense, it was well open to his Honour to characterise such a deliberate action as "cold-blooded". 152His Honour was also entitled to reject the suggestion that the appellant's sentence should be mitigated because in discharging the firearm, he was acting in self-defence. At the time he fired the fatal shot, he was separated by approximately a metre from the deceased and there was no evidence that the deceased at that time was making any move towards him. Moreover, as already indicated, the entire self-defence scenario is placed in considerable doubt by the absence of any machete wounds suffered by the appellant to any part of his body except his index fingers. 153Since the only evidence as to the circumstances in which the deceased was shot came from Messrs Kerr and Cole, their evidence must have been accepted by the jury thereby entitling his Honour to make the findings which he did. This ground of appeal should be dismissed. Ground 2: The sentence imposed in respect of Count 1 was manifestly excessive. Ground 2A: The total sentence is excessive in the light of the applicant's medical condition. Ground 2B: Fresh evidence. 154These grounds of appeal can be conveniently dealt with together. The fresh evidence ground relates to the appellant's health and has already been dealt with. 155The appellant submitted that he was aged 67 years and 3 months at the time of sentencing. He would be almost 87 years of age when eligible for parole. The appellant submitted that this was a factor which the sentencing judge should have taken into account and it was an error for him not to do so. 156The appellant referred to R v Hunter (1984) 36 SASR 101 at 103 where King CJ, when dealing with the question of sentence for a 74 year old person convicted of fraud, said: "The difficult aspect of the respondent's case is his age. A sentencing judge cannot overlook the fact that each year of the sentence represents a substantial proportion of the period of life which is left to him. It may be that when that consideration is borne in mind, it can be said that the sentence of five years' imprisonment, which at first sight seems very lenient for the respondent's criminal conduct, is nevertheless within the scope of the judge's sentencing discretion." 157In the same case, Jacobs J at 106 said: "What is there, then, to take this case out of the ordinary range? It can only be the age of the respondent, who is now seventy-four years old. To impose a head sentence of the magnitude which the crimes deserve would thus be tantamount to a sentence of life imprisonment, and that would clearly be inappropriate. Such a sentence is reserved for the most heinous felonies. Recognising that, the learned sentencing judge felt unable to go beyond a head sentence of more than five years, and I am quite unable to say that he erred in fixing so short a period." 158Malcolm CJ in R v Austin (1996) 87 A Crim 570 at 572, citing an earlier decision of the Court of Criminal Appeal of Western Australia in Smith, said: "The significance of old age as a mitigating factor, particularly when combined with ill health, is that it constitutes a basis on which the Court in the exercise of mercy, may impose a sentence significantly shorter than otherwise might be the case." 159In relation to his health, the appellant submitted that it was clear that he suffered from terminal cancer and that he had only a short time to live. In those circumstances, the appellant submitted that he should be released forthwith so that he can die in the presence of his family outside of prison. The appellant submitted that even in a palliative care environment, the impact of serving a prison sentence will make his final months of life more difficult that if he were to be released. 160The Court was referred to a decision of the Queensland Court of Appeal in R v Leith [2000] 1 Qd R 660 where Shepherdson J (with whom de Jersey CJ and Cullinane J agreed) said in relation to a drug trafficker who had been sentenced to imprisonment for 9 months, but who after sentencing, had been diagnosed with terminal cancer: "In my opinion the circumstances of the present case are very unusual and are such that if the sentence remained in place the applicant, whose health is in a very parlous state, might well die in custody. Such a result would be draconian, tragic and inhumane. If both applications before this Court were refused, it appears likely the applicant would effectively be obliged to spend his last days in custody and be deprived of the society and comfort of his wife and children. It appears that the applicant's illness has ended an estrangement he had with his wife. He would be obliged to recover from treatment while in a prison hospital situation. In my view, given the very unusual circumstances of this case it would be a miscarriage of justice if this extension of time were not granted and the sentence not varied to permit the applicant to be released immediately from custody." Consideration 161The only reference to the appellant's age made by his Honour was: "In terms of the future, the reality is Hudd has no real prospects of rehabilitation. As I said, he is now 67, and the duration of any sentence I pass must, of necessity, exceed his present life expectancy on the mortality table. Indeed, and this is an extraordinary case, there is no subjective factors which are in any way favourable to Hudd, other than perhaps his age. As the Crown rightly submits, this is a case where the remarks of the High Court in Veen v The Queen (No 2) (1988) 164 CLR 465 at 477 are applicable: "The antecedent criminal history is relevant, however, to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted. It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case, or shows his dangerous propensity or shows a need to impose condign punishment to deter the offender and other offenders from committing further offences of a like kind."" 162The issue of the age of an offender was considered by Giles JA (with whom Howie and Latham JJ agreed) in Barton v Regina [2009] NSWCCA 164: "In Goebel-McGregor v R [2006] NSWCCA 390 the applicant was found guilty of murder, and was sentenced to imprisonment for a non-parole period 15 years and a total term of 20 years. The sentence commenced when the applicant was aged 62. James J, with whom Hidden and Hislop JJ agreed, recorded at [126] the submission that the sentencing judge "having decided that the offence did not call for a life sentence, had imposed a sentence which, having regard to the prisoner's age and life expectancy, was tantamount to a life sentence". His Honour said of this - "128 As regards the further submission made by counsel for the appellant, it is true that this Court has said that, if a life sentence is to be imposed, it should be imposed "frankly and directly" and a sentencing court which refrains from imposing a life sentence should not impose a determinate sentence which would have the effect of a life sentence. R v Chen (2003) 138 A Crim R 433 at 444 (67). However, a sentence must reflect the objective seriousness of the offence and when the offender is of advanced years a determinate sentence, in order to reflect the objective seriousness of the offence, may unavoidably extend for all or most of the offender's life expectancy. In Des Rosiers v Regina [2006] NSWCCA 16 Latham J, with whom the other members of the Court agreed, referred with approval at par 30 of her judgment to a statement by Allen J in R v Holyoak (1995) 82 A Crim R 502 at 507: 'It simply is not the law that it can never be appropriate to impose a minimum term which will have the effect, because of the advanced age of the offender, that he well may spend the whole of his remaining life in custody'. 129 In the present case the appellant was sixty-two years old at the time he committed the offence of murder by what the sentencing judge found to be a cowardly and brutal act. It was inevitable that there would be a real risk of the appellant dying in custody, before he completed serving even the non-parole period of any sentence which adequately reflected the objective seriousness of the offence. The age of the offender means that a custodial sentence appropriate in all the circumstances for the murder of the deceased will be likely to see him in custody at the end of his life. There is no certainty of that but the actuarial probabilities and common experience suggests that it is so. I am bound to take that fact into account, but not in a way that derogates on the obligation of the sentencing judge to impose a sentence that adequately reflects the objective seriousness of the offence. The advanced age of the offender is a matter I take into account when determining whether to reduce the standard non-parole period of 20 years and whether or not to vary the statutory ratio of the non-parole and parole period." 163There is some force in the Crown's complaint that the information provided concerning the appellant's health is of a general kind. I agree. Nevertheless, the report of Dr Badami from JusticeHealth refers to the presence of a metastatic lung sarcoma which in this case is of such lethality that the appellant's treating doctors ceased chemotherapy. In those circumstances, I accept that the appellant's health condition is parlous and is life expectancy is certainly less than 12 months. 164The submissions relating to the appellant's health raise in effect similar issues to those which arise when taking into account a long sentence for an offender of advanced years. In such cases, one would not be human if one did not feel some sympathy for the position of an offender who finds himself or herself in such circumstances. That having been said, the Court is still obliged to approach such situations in a principled fashion. 165As his Honour found, all of these offences but in particular the murder offence, were objectively serious. His Honour assessed it as falling just short of being within the category of the worst type of case. It is clear why his Honour reached that conclusion. The actual shooting, as I have indicated, was deliberate and not compelled by circumstances. To that extent, there was a certain cold-blooded detachment on the part of the appellant in the commission of the crime. 166The offence of murder carried a standard non-parole period of 20 years. His Honour imposed a non-parole period of 20 years and 3 months. Given his Honour's assessment of the objective seriousness of the offence, the sentence in fact imposed was lenient in the circumstances. The circumstances of this case, and the very serious nature of the offending, are quite different to the circumstances considered by the Court in R v Leith. Accordingly, despite the fresh evidence and the appellant's age, it would not be a proper exercise of the court's sentencing discretion to reduce the sentence for the murder offence. Ground 3: The learned sentencing judge failed to apply the principles of totality. 167No oral submissions were addressed to this ground and the written submissions were restricted to an assertion that the effective head sentence of 28 ½ years was manifestly excessive, thereby demonstrating that the principle of totality had been breached. Consideration 168His Honour followed what he was required to do by Pearce v R [1998] HCA 57; 194 CLR 610 by first determining the appropriate sentence for each offence and then considering the issues of accumulation or concurrency, as well as questions of totality. Whether or not to accumulate sentences imposed in relation to multiple offences is essentially an exercise of discretion made in accordance with established principle. In R v Hammond (2000) 118 A Crim R 66 Simpson J said: "There will be many cases in which sentencing judges might take differing view but neither view would be said to be wrong." 169It is evident that his Honour gave considerable thought to the application of the principle of totality when he structured the sentences. He specifically referred to Pearce and the principle of totality. In considering the total sentence passed, one needs to keep in mind that his Honour was sentencing for a serious murder offence, for two pre-meditated armed robberies in company, each of which was accompanied by violence, for a malicious wounding with intent to do grievous bodily harm and for an assault in company occasioning actual bodily harm. Neither the overall head sentence nor the overall non-parole period can reasonably be regarded as appellably excessive or as failing to take into account the principle of totality. Ground 4: His Honour erred in failing to find special circumstances. 170The appellant submitted that because of the appellant's age and the accumulation of sentences, a finding of special circumstances was warranted and his Honour erred in not varying the statutory ratio. Consideration 171It is clear from his Honour's remarks on sentence that he was requested to make a finding of special circumstances but declined to do so. The principles applicable to setting a non-parole of a sentence under s 44 of the Crimes (Sentencing Procedure) Act 1999 were conveniently summarised by RA Hulme J in Caristo v R [2011] NSW CCA 7 at [28]: "28 A finding of special circumstances is a discretionary finding of fact in respect of which this Court will be slow to intervene: Jiang v R [2010] NSWCCA 277 at [83]. 29 "As a practical matter there are unlikely to be many cases in which this Court will interfere unless the non-parole period is found to be manifestly inadequate or manifestly excessive": R v Fidow [2004] NSWCCA 172 at [19]; R v Cramp [2004] NSWCCA 264 at [36]. 30 Simply because there are circumstances which are capable of constituting special circumstances, the court is not required to make such a finding and reduce the non-parole period: R v Fidow, above, at [22]. 31 The degree or extent of any adjustment of the "statutory ratio" is a matter for the discretion of the sentencing judge: R v Cramp, [2004] NSWCCA 264, at [31]; Trad v R [2009] NSWCCA 56 at [33]." 172In the present case his Honour set out the relevant principles, considered their application, exposed his reasons and partially accumulated the sentences. He was aware of and specifically noted that the consequence of the sentences imposed would likely see the applicant die in gaol, but found that such a sentence was the only one that he could impose given the objective seriousness of the offences. There was no miscalculation, mistake or inadvertence involved. No error in his Honour's approach or in his exercise of discretion has been demonstrated. This ground of appeal should be dismissed. CONCLUSION 173The orders which I propose are as follows: (1) Grant leave to appeal in relation to the factual issues in the conviction appeal and in respect of the sentence appeal. (2) Dismiss the appeal. 174During the course of the appeal, Senior Counsel for the appellant advised the Court that an application had been made to the Government for clemency in this matter given the serious nature of the appellant's illness. For the reasons set out above, the application of established principle required that the appellant's application for leave to appeal against sentence be dismissed. That having been said, I wish to record the support of the Court for the appellant's application for clemency. 175ADAMS J: I have had the advantage of reading in draft the judgment of Hoeben JA. I respectfully agree with his Honour's reasoning and conclusions as to all grounds of appeal except Grounds 2 and 3 in respect of the conviction, as argued by counsel on the appellant's behalf. I agree that the trial judge erred in removing from the jury's consideration the question whether the shooting of Mr Rawas occurred immediately after the foundational crime, namely armed robbery and, hence, that the crucial question arises as to the application of the proviso to s 6(1) of the Criminal Appeal Act 1912. It is not necessary for me to set out again the relevant authorities, which have helpfully been cited by Hoeben JA. However, it is perhaps worth noting that the observation in Weiss v R [2005] HCA 81; (2005) 224 CLR 300 at [43] that "the appellate court's task must be undertaken on the whole of the record of the trial including the fact that the jury returned a guilty verdict" can scarcely apply where that verdict has been given in obedience to a direction as to how a matter of fact encompassing an element of the offence must be decided, thus removing from the jury its constitutional role in deciding that question. 176Here, the critical question is whether the prosecution had established beyond a reasonable doubt that the appellant had shot Mr Rawas "immediately after" the armed robbery. On any account, the robbery was well and truly over at the time. There was link between that offence and the shooting, beyond question, in the sense that Mr Rawas had escaped from his bonds and pursued the man he believed (on good grounds) to be one of the robbers. For present purposes it matters not why he did so. As all witnesses attest, Mr Rawas attacked the appellant. He was shot a very short time after the first physical connection between them, some 30 metres or so from the shop. Was the temporal connection between the robbery and the shooting "immediately after" the robbery? 177It is, to my mind, imperative to bear in mind that, as a matter of principle, we are dealing here with an action which otherwise might well not be murder. The only requirement, so far as the act of an offender is concerned, is that death result from an intentional act, even if there was no intention to injure in any way or, indeed, even if no reasonable person would have foreseen that injury might result. The need to interpret the requirements of the section strictly is evident. I do not mean that the word "immediately" is not to be given its ordinary meaning but no moment past the immediate will qualify. Furthermore, the context is incapable of expanding or varying its connotation. The mere fact that there is a link between the robbery and the killing says nothing whatever about the temporal requirement. That must be determined objectively as a separate and independent question though, of course, in the factual context of what occurred. 178The term "immediately after" is one of ordinary English usage. No doubt it is not susceptible of mathematical precision. To my mind, it carries the sense of something happening without any delay or lapse of time, straightaway or (to adapt the language of the trial judge in Attard (NSWCCA unreported, 20 April 1993) "forthwith". The appellant's killing of Mr Rawas certainly was not the next thing to occur after the robbery - that was the offenders leaving the premises and moving some 30 metres down the road and the next event was the physical grappling between the appellant and Mr Rawas, after which the shooting occurred. In short, there was a sequence of identifiable, separate events following the robbery, of which the shooting of the deceased was the last. I am unable to agree, with respect, that the shooting occurred "immediately after" the robbery as required by the section. 179At all events, the requirement of immediacy was an element of the offence which it was entirely within the province of the jury to determine. The impugned direction that substituted the trial judge's opinion was not a denial of procedural fairness (see Weiss, supra, at [45]). Neither Hoeben JA nor Beech-Jones J consider that the error was sufficiently fundamental to render the proviso inapplicable. With respect, I am unable to agree with this conclusion. The appellant was entitled, indeed as was the community, to have the jury consider and determine whether the prosecution had proved each element of the offence beyond reasonable doubt. This requirement was not met that one such element was decided, instead, by the trial judge. For that reason alone I would not apply the proviso to the error. 180Upholding this ground of appeal would have the consequence that the conviction of the appellant for murder would be quashed and a new trial ordered. However, it follows from my view of the evidence as to immediacy that I would also uphold Ground 3. This would have the consequence of requiring a verdict of acquittal to be entered. 181BEECH-JONES J: I have had the benefit of reading the judgment of Hoeben JA. I agree with those reasons. I add the following in relation to ground 2. 182For the reasons given by Hoeben JA it was erroneous of the trial judge to remove from the jury's consideration the determination of the issue posed by s 18 of the Crimes Act 1900 as to whether the killing of the deceased took place "during or immediately" after the commission of the robbery of the store in Matraville. This conclusion gives rise to the need to consider the application of the "proviso" in sub-section 6(1) of the Criminal Appeal Act 1912, namely whether this Court should dismiss the appeal because "it considers that no substantial miscarriage of justice has actually occurred." 183The appellant contended that the failure of the trial judge to leave this issue to the jury represents a form of error that does not attract the proviso. The proposition that certain classes of error can preclude the proviso's application derives support from the judgment of Gibbs CJ in Quartermaine v The Queen [1980] HCA 29; 143 CLR 595 at 600 to 601 and the judgments in Wilde v The Queen (1988) 164 CLR 365 at 372 -373 (per Brennan, Dawson and Toohey JJ), at 375 (per Deane J) and at 381 - 382 (per Gaudron J). Whether such a form of error exists was left open by the unanimous judgment in Weiss v The Queen [2005] HCA 81; 224 CLR 300 at [46]. However in Gassy v The Queen [2008] HCA 18; 236 CLR 293 at [33] Gummow and Hayne JJ stated that the majority judgement of Brennan, Dawson and Toohey JJ in Wilde is "not to be understood as prescribing or defining a class of cases to which the proviso cannot be applied" but was instead identifying a category of case in which an "appellate court could not conclude that there had been no substantial miscarriage of justice". In Evans v The Queen [2007] HCA 27; 235 CLR 521 at [42] their Honours described the proper approach as being the "graver the departure from the requirements of a fair trial, the harder it is for an appellate court to conclude that guilt is established beyond reasonable doubt" for the purpose of applying the proviso (see also Cooper v The Queen [2012] HCA 50; 87 ALJR 32 at [53] per Heydon J; cf Conway v The Queen [2002] HCA 2; 209 CLR 203 at [103] per Kirby J). 184Assuming that I am bound by Wilde to hold that there is a class of error or irregularity that precludes the operation of the proviso because the "trial was so irregular that no proper trial has taken place" (Quartermaine at 601), this was not such a case. As noted by Hoeben JA at [122] an erroneous direction to the jury does not per se preclude any application of the proviso. Subsection 6(1) itself makes that clear. It might be said that the error was potentially more serious than a mere erroneous direction as its effect was that the jury were not asked to deliberate on a matter that constituted an element of the crime. However, while that matter may make it harder for the Crown to satisfy the proviso, the Court was not referred to any authority suggesting that it amounted to the sort of extreme or fundamental error that might, on a view of Quartermaine or Wilde, preclude the proviso's application. Certainly it did not equate to the sort of irregularities that occurred in Wilde which the majority in that case held were answered by the application of the proviso (at 373 to 375). 185In Weiss at [43] the High Court stated that the jury's guilty verdict "cannot be discarded from the appellate court's assessment of the whole record of trial". In this case it is clear that the jury rejected the appellant's version of events which was completely inconsistent with the evidence from the various eye witnesses. This aspect of their assessment was unaffected by any failure of the trial judge to direct them as to the need for the killing to take place during or immediately after the robbery. The evidence of the eye witnesses is summarised in the judgment of Hoeben JA at [18] to [53]. Allowing for understandable differences in their recall of a traumatic event, in my view it follows inexorably from the evidence of those witnesses that the killing of the victim occurred "immediately after" the commission of the felony by the appellant. In this case the evidence that was "admitted at [the] trial proved, beyond reasonable doubt, the [appellant's] guilt" on the charge of murder (Weiss as [44]). I am satisfied that no substantial miscarriage of justice occurred. I am also satisfied that there is no reason not to dismiss the appeal (Weiss at [45]). 186I agree with the orders proposed by Hoeben JA.