R v Thurston

LOWER COURT Supreme Court JURISDICTION : LOWER COURT 70066/01 FILE NUMBER(S) : LOWER COURT Dunford J JUDICIAL OFFICER :

IN THE COURT OF CRIMINAL APPEAL 60209/03

HIDDEN J BARR J NEWMAN AJ

Thursday, 1 July, 2004 REGINA v Edward George THURSTON Judgment 1 HIDDEN J: The appellant, Edward George Thurston, was tried jointly with one Stanley Joseph Lamb upon an indictment charging that they murdered Terrence Patrick Byrne at a park in Tamworth in the evening of 29 October 2000. Both were found guilty and the trial judge, Dunford J, sentenced the appellant to imprisonment for seventeen years with a non-parole period of twelve years and nine months, and Lamb to imprisonment for eighteen years with a non-parole period of thirteen and a half years. The appellant appeals against his conviction and seeks leave to appeal against the sentence. 2 An adequate summary of the evidence and the issues at the trial is to be found in his Honour's remarks on sentence, as follows: 2 The prisoners are stepbrothers who grew up together on the mission station at Collarenebri. Stanley Lamb had been living in Tamworth for some months and Edward Thurston, having left his de-facto wife in Dalby following domestic disagreements, was on his way to Sydney when he stopped over in Tamworth on the weekend of 28 and 29 of October and went to visit Lamb's older brother, Frank Murray, at his home at 12 Kenny Drive in Coledale, a suburb in Tamworth. 3 On Sunday 29 October both Stanley Lamb and Edward Thurston spent most of the day drinking Moselle cask wine with a number of other Aboriginal young people in the Coledale area. Evidence was given by a number of witnesses concerning this drinking and it is apparent that Stanley Lamb in particular was significantly affected by the amount of alcohol he had drunk. During the afternoon they also, in the company of others, each smoked a couple of cones of marijuana in a bong. 4 Stanley Lamb had a verbal argument with Bradley French during the afternoon, and later he had a more intense argument with Anthony Slater because of which he removed his shirt and wanted to fight Anthony Slater. On both of these occasions Edward Thurston acted as a restraining influence and told him to calm down, and in the case of Anthony Slater he actually physically restrained him.

5 After the argument with Anthony Slater it appears that the prisoners walked towards Granny Munroe Park and shortly afterwards they were seen on the grassed area of the car park of the Coledale Community Centre where Stanley Lamb again became abusive towards Michael Marshall who was passing by, calling him " a white motherfucking cunt ". The prisoners then walked through the car park onto the pathway that leads across Granny Munroe Park to Matheson Street. 6 Meanwhile at the Locomotive Hotel the deceased purchased a cask of Moselle wine and a packet of Drum tobacco. He did not have sufficient cash on him to purchase the wine and to pay for a taxi to his home in Fleming Drive which was on the far side of Granny Munroe Park, but the publican gave him five dollars and called him a taxi. The deceased asked the taxi driver to take him as far as his money would take him towards his home, and he was taken to the corner of Kenny Drive and Warral Road which was at the corner of Granny Munroe Park, where he was dropped off at about 7.45pm. 7 At 10.22pm a 000 call was made, apparently by Stanley Lamb, from 12 Kenny Drive, the home of Frank Murray, requesting that an ambulance be sent to Granny Munroe Park because there was a man dead in the park. The caller said he was calling from Sydney but the operator was able to identify the source of the call as 12 Kenny Drive, Tamworth and notified the ambulance and police accordingly. 8 When police went to 12 Kenny Drive they found Edward Thurston asleep on the lounge, his top inside out, with blood on his jeans, his top and his shoes. He was arrested and taken to Tamworth Police Station for questioning, where he said in effect that he came across the deceased lying on a path in the park between 6 and 7pm, went to assist him and in doing so picked up the deceased's head and checked for breathing and a pulse, he then panicked when he realised the deceased was dead and dropped his head, went home and went to sleep. He was scared because he thought he might get the blame for it. He also told a number of other lies in the interview and denied being involved in any way with the death of the deceased, and denied being present at the time of his death. 9 Meanwhile police went to 144 Duri Road where they found and arrested Stanley Lamb. He had in the meantime changed his clothes, and the clothes he was wearing that evening were not located until the following day. He was taken by police to Tamworth Police Station and when interviewed said that he was with Thurston in the park where they and the deceased were drinking together. After they consumed some wine they asked the deceased for money, but the deceased walked away and as he was walking away he called Lamb and Thurston " black cunts ". 10 He said that he then punched the deceased to the head knocking him to the ground, whereupon Edward Thurston went crazy and started kicking him. He said that Thurston would have kicked him about 100 times, that whilst doing so was saying, " kill him, kill him " , and that he required Lamb to help him by also kicking the victim, and he head butted Lamb to this end. Lamb said he would have kicked the deceased 15 times, three times in the head, including stomping on his head. This was not evidence against Thurston. He later went with police to the scene and took part in a video walkthrough with them. 11 On 31 October the accused Thurston was visited by his then de-facto wife, Kellie Burleigh, in the cells. He told her that he was present, but that Lamb had killed the deceased and that the motive was robbery, although it was not clear from the evidence, whether he said " it was a roll that went wrong " or " he [meaning Lamb] wanted to roll him and it went wrong ". She urged him to tell the truth to the police and he told the police that he wished to make another statement because he had told lies to protect "his brother", meaning Lamb. The police arranged for him to see a solicitor before making any further statement, and apparently the solicitor advised him not to say anything further. This, of course, was not evidence against Lamb. 12 The injuries inflicted on the victim were horrific. The autopsy revealed the presence of multiple blunt force injuries to the head, neck and trunk including extensive bruising to the face and scalp, fractures of the facial bones and skull, and injury to the underlying brain. The injuries to the neck included fractures of the larynx. Ill-defined areas of bruising and numerous abrasions were also present on the upper limbs and trunk, there were numerous fractured ribs on both sides of the chest and bruising of the lungs. There was injury to the heart and to a number of structures around the heart. There was also a small amount of bleeding around the left adrenal gland. The pathologist, Dr Sugo, identified 27 separate lacerations or areas of bruising to the head and neck, fractures of all ribs on both sides, except the first, and the ribcage was in effect crushed. All injuries sustained were consistent with kicking and stomping on the deceased while he lay on his back, on the ground, and it can only be described as a frenzied and vicious assault by two young men on a defenceless man considerably older than themselves. 13 Stanley Lamb did not give evidence at the trial but Edward Thurston did. He said in effect that in the evening after the afternoon's activities they were sitting in the park in the children's playground area when they saw the deceased walking past with a cask of wine in a plastic bag. They asked him for a drink and he gave them each a drink, and then when they asked for another he said that this would be the last as he wanted to keep the rest for the following day. 14 The deceased then started to move off but Lamb said he was going to " roll him ", meaning rob him but Thurston did not respond, he was dozing for a period, and then he got up and followed them down the path where he saw Lamb kicking and stomping on the deceased. He said he pushed Lamb away and wiped blood from the deceased's face, thus explaining the transferred blood found on the sleeves and an area of the top he was wearing at the time; however subsequently Lamb returned to the deceased and continued the assault until he pulled him away again. 15 Thurston defended the case on the basis that he was not involved in the assault although present during part of it, whilst Lamb claimed that Thurston was the major aggressor and that on account of his intoxication he did not form the relevant intent, and alternatively that he was provoked by the deceased calling him a " black cunt ". By their verdicts, the jury have rejected these various defences and for very good reason. 16 Although Thurston in his sworn evidence denied being involved and sought to explain the blood on his clothing by reference to his efforts to pull Lamb away from the deceased and his wiping the deceased's face and head with his shirt, the marks of projected blood in particular, as well as transferred blood on his jeans and shoes, indicated his involvement; and this was reinforced by the evidence of the linear bruise on the deceased's left forehead matching the pattern on the heel of one of the shoes worn by the prisoner. … 22 The deceased apparently had a high blood alcohol reading at the time of his death and apparently was a chronic alcoholic but I am satisfied that this in no way contributed to his death. He had no money of significance on him and the only proceeds of the robbery were a nearly full cask of cheap Moselle wine and a packet of Drum tobacco.

Appeal against conviction 3 The only ground of appeal against conviction is that his Honour "erred in the directions to the jury regarding common purpose felony murder". 4 His Honour left murder to the jury on all the bases expressed in s 18 of the Crimes Act: the act of the accused being accompanied by an intention to kill or inflict grievous bodily harm or a reckless indifference to human life, or being done during or immediately after the commission of a crime punishable by not less than twenty five years imprisonment. That last basis is known conveniently, although inaccurately, as "felony murder". In summarising that basis of murder, his Honour identified as the foundational crime assault with intent to rob with wounding or the infliction of grievous bodily harm: s 96 of the Crimes Act, and explained the elements of that offence. 5 His Honour went on to explain the notion of joint criminal enterprise or common purpose, relating it to each of the bases of murder. In that context his Honour said: Now moreover, if you are satisfied that there were two persons present, both attacking the deceased, and both have the common intention that he should be killed or suffer grievous bodily harm, or were acting with a reckless indifference to human life, or intended to assault and rob him with wounding, then each of them are present, aiding and abetting the other, and in the event of his death both are guilty of murder. In such circumstances there is no need to prove a prearranged plan between them. Indeed it is not necessary that both of them be attacking the victim, it is sufficient if the second person is merely standing by ready to assist if necessary, provided they both have the common intention to kill or cause serious bodily injury, or assault and rob , or act with reckless indifference to human life. Or if the person standing by aiding and abetting knows that the one doing the attacking has that intention to kill, or is acting in the way I have described, reckless indifference, or involved in an assault and rob , mere presence without being ready to assist, just standing by is not sufficient. And if such person is ready to assist, or is encouraging or is participating, then they are both guilty of murder. (Emphasis added.) 6 The first of the italicised passages could have conveyed to the jury that the offence under s 96 required proof that the offender intended to wound. This, of course, is not the case: R v Munro (1981) 4 A Crim R 67. However, it is clear from other passages in the summing up that his Honour did not intend to convey that. When he first introduced the concept of felony murder, he said "…in relation to this alternative the Crown does not have to establish any specific intention to injure at all." Later in the summing up he said: As was mentioned earlier, in relation to the assault with intent to rob, you don't have to be satisfied of any intent to kill or cause grievous bodily harm, but you do have to be satisfied of the intent to assault and rob not to inflict any particular injuries. 7 It is the other two italicised passages in the extract from the summing up quoted above which give rise to the ground of appeal. The evidence in the case called for a direction about joint criminal enterprise or common purpose, particularly as it was the case for the appellant that it was Lamb alone who inflicted the violence which led to the death of the deceased. It was necessary for the jury to understand how, even if that were so, the appellant might be criminally responsible for the violence of his companion. 8 In the context of felony murder, this required proof of more than a shared intention to rob. The Crown had to establish that the appellant contemplated that in the course of carrying out the robbery the victim might be wounded or suffer grievous bodily harm: cf. R v Sharah (1992) 30 NSWLR 292, per Carruthers J at 297-8. While Carruthers J was there dealing with a foundational felony of armed robbery with wounding, pursuant to s98 of the Crimes Act, the principle is the same. It is true, as the Crown prosecutor in this Court pointed out, that in Sharah one of the offenders used a weapon, conduct which might more readily raise an issue whether such an act was within the contemplation of a co-offender. However, that also is not a relevant distinction. 9 In the present case, with respect, that principle was not conveyed by the directions to the jury, who would have been left with the impression that a shared intention to rob was sufficient to implicate the appellant in the murder, whether or not he was an aggressor. The question remains whether the conviction should stand by the application of the proviso to s6(1) of the Criminal Appeal Act, upon the basis that no substantial miscarriage of justice has actually occurred. 10 The principles governing the proviso were reviewed in Festa v The Queen (2001) 208 CLR 593 per McHugh J at 627-633, Kirby J at 652-655 and Hayne J at 659-662. Put shortly, the proviso can be applied where the Court is satisfied that, absent the identified error, the jury, acting reasonably, would inevitably have found the appellant guilty. Their Honours do not appear to have called into question what Gleeson CJ, when he was Chief Justice of this Court, described as "a diminished inclination in recent times to invoke the proviso (even in otherwise very strong Crown cases) where misdirection has been shown upon an important ingredient of the law applicable to the trial": R v Whittaker (1993) 68 A Crim R 476 at 484. Indeed, in Festa at 653 [200] Kirby J embraced that observation. 11 It is true that there was a substantial Crown case against the appellant on all the bases of murder. The physical evidence summarised in paragraph 16 of Dunford J's remarks on sentence, quoted above, pointed to his participation in the violence. In this regard, it should be noted that there was evidence in the Crown case from a forensic pathologist not only that the bruise on the deceased's forehead matched the pattern on the heel of one of the shoes worn by the appellant, but also that it was dissimilar from the pattern on the shoes worn by Lamb. On the other hand, the evidence of another forensic pathologist, called in the defence case, questioned whether there could be said to be a match between the bruise and the appellant's shoe, although it could not be excluded. 12 As to felony murder, there is the evidence of the conversation between the appellant and his de-facto wife referred to at par 11 of the remarks on sentence. However, while he spoke of a robbery perpetrated by Lamb, what he said fell short of an admission of his own involvement. His admitted lies when first spoken to by police, referred to at par 8 of the remarks, were not relied upon by the Crown as demonstrating a consciousness of guilt, but obviously they bore upon the credibility of his evidence at the trial. That said, it is not implausible that he lied partly to protect Lamb and partly through fear that he might be wrongly implicated in the killing. 13 As the Crown prosecutor in this Court pointed out, the scope of the common purpose, assuming the appellant to have been a participant in the robbery, was not a central issue in the trial. His case, summarised in pars 13-15 of his Honour's remarks, was that he was not involved in the robbery at all. The Crown prosecutor argued that, if the jury were satisfied that he was a participant in the robbery and had turned their minds to the question whether he contemplated the possibility of wounding or the infliction of grievous bodily harm, they would inevitably have concluded that he did. Reliance was placed on the evidence, set out at pars 3-5 of the remarks, of Lamb's pattern of drinking and aggressive behaviour, in the presence of the appellant, throughout the day in question. 14 These are weighty arguments, and the question of the application of the proviso has called for careful consideration. Nevertheless, it cannot fairly be said that this is a case in which the jury, properly directed, would inevitably have found the appellant guilty. In the nature of things, felony murder is more easily proved than the other heads of murder. It is for that very reason that careful directions, tailored to the evidence in the particular case, are called for. While it is true that the appellant's case was fought on the basis that he was not a party to the robbery, the fact that his counsel at trial sought redirections about the issue at hand in this appeal demonstrates that the matter was not seen as academic. 15 The appeal should be allowed, the conviction and sentence quashed, and a new trial ordered. 16 Since preparing these reasons in draft, I have read the judgments of Barr J and Newman AJ, but I remain of the view that the appeal against conviction should be allowed. However, aware that I am in the minority, I would add that I agree with Barr J's disposition of the sentence appeal. 17 BARR J: I agree with Hidden J, for the reasons explained by his Honour, that the point raised by the appeal should be decided in favour of the appellant. However, I would dismiss the appeal because I consider that no substantial miscarriage of justice has occurred. 18 I gratefully adopt Newman AJ's review of the evidence about the appellant's participation in the attack on the deceased. I think, for the reasons explained by his Honour, that, properly instructed, the jury would inevitably have concluded that the accused joined in the kicking of the deceased and would inevitably have inferred an intent to do grievous bodily harm. 19 There were two grounds of appeal against sentence, namely that the appellant had a legitimate sense of grievance by comparing his sentence with Lamb's and that his Honour erred in failing to find circumstances justifying a reduction in the non-parole period. 20 The appellant was sentenced to imprisonment for seventeen years with a non-parole period of twelve years and nine months. Lamb was sentenced to eighteen years with a non-parole period of thirteen years six months. Both grounds of appeal invite consideration of the appellant's and Lamb's background and upbringing. They were summarised by the sentencing judge as follows- Stanley Lamb was born on 19 November 1977 and is now almost 25. He is the youngest of nine siblings and step-siblings and grew up on the Aboriginal Reserve at Collarenebri. His parents separated when he was approximately four years old and he remained with his mother but maintained a strong and positive relationship with his father, who died from lung cancer when the prisoner was aged 17. He left school at the age of 12, without completing his final year of primary education and he is for practical purposes unable to read or write. He left home at the age of 14 or 15 after an argument with his mother and lived on the streets for some time. He subsequently moved to Tamworth and formed a relationship with a young lady which resulted in the birth of a daughter in 1997. The Pre-Sentence Report suggests that this remains a mutually supportive partnership despite periods of separation and violence on the part of the prisoner, but there was evidence at the trial that at the time of the offence the mother was not permitting the prisoner to see their daughter, and this was the cause of the argument he had with Anthony Slater during the course of the afternoon. He has had occasional jobs in shearing sheds and cotton picking but no regular employment. He has an extensive history of drug and alcohol abuse, having started the use of cannabis at the age of nine with petrol sniffing at 13, progressing to alcohol and amphetamines at the age of 14 and subsequently heroin and cocaine. He has a large number of convictions dating back to 1992, including 13 for assault of various kinds and all of his offences have been associated with excessive use of alcohol. What I find particularly disturbing is that some of the offences bear unfortunate similarities to the present. On 12 April 1995 he was convicted of assault occasioning actual bodily harm, the circumstances being that having asked the victim for alcohol and being refused, he became aggressive, was told to leave the house, which he did, but he later returned and kicked the victim to the head as the latter was lying on the ground watching television. Subsequently he was convicted on 10 May 1999 of assaulting his then de-facto partner by punching her a number of times to the head, and when she doubled over as a result, he kicked her to the head and stood on her head a number of times resulting in extensive bruising to her ribs, cheek, eye and jaw area. He has served a number of short sentences of imprisonment and in addition has been granted parole, community service and supervised recognisances, none of which he has complied with. According to the Pre-Sentence Report, he tends to be aggressive, and in particular has an inability to control his behaviour when intoxicated by drugs and/or alcohol. The prisoner has acknowledged this, and during previous custodial sentences has attended drug and alcohol counselling and attracted positive reports in relation thereto, but despite extensive attempts to assist him via referral to a variety of agencies and facilities, he has on his release failed to avail himself of these opportunities and immediately returned to past patterns of behaviour, even when attendance at further counselling or a residential rehabilitation centre has been made a condition of his parole. There has been a similar lack of positive response when such conditions have been imposed as terms of bonds. Anita Duffy, psychologist, assessed him as being of below average intelligence with low self-esteem bound up with his literacy problems. Personality testing revealed depressive, dependent and avoidant traits with high levels of anxiety, and his results were also significant on the paranoid and schizatypal scales suggesting he was suspicious and constantly vigilant to criticism and suspicious of others. Since being in custody he has undertaken courses in literacy, oral communication and Koori cultural values. He also suffers a heart condition which may require surgery in the future and has been referred to a cardiologist. He is also said to be currently on protection in the prison system, but his counsel was not able to inform me of the reason for him being on protection, or precisely what restrictions were placed upon him as a result of such protection. Ms Duffy described him as being on strict protection and constantly vigilant to threat or harm from other inmates. In those circumstances it cannot be assumed that he will remain on protection for the whole of the sentence he is required to serve and the number of certificates and other records that have been produced concerning the education that he has undertaken indicate that he has not been deprived of educational facilities as a result of being on protection. I have nevertheless taken into account that protection entails a more severe form of punishment. He has expressed remorse for his actions and claims that is why he telephoned the '000' number, although the deceased was dead by the time the call was made. Edward Thurston was born on 8 May 1975 and is now aged 27 years, the youngest of seven children. His parents separated when he was two years old and, after a time in welfare homes in the Grafton area he returned with his siblings to live with his mother in Coonamble. She moved to Collarenebri when he was about five years old and she married the father of Stanley Lamb. He then grew up in Collarenebri where they lived in tin humpies on the Aboriginal Reserve until they got a government built house, but in 1987 their mother died, whereupon the family split up and moved away. His biological father died in 1989 and he remained with his stepfather until he was 16 years old when he left the family home and he has been in trouble since shortly after that time. He lived in Sydney for a while but in about 1998 he moved to Dalby where he formed a de-facto relationship with Ms Davidson with whom he had a child, born on 2 February 1999, but later that year this relationship broke down, mainly due to his drinking and verbal abuse of his partner. He then formed a relationship with Kellie Burleigh but this also came to an end a couple of days before he arrived in Tamworth, due once again to his drinking and physical violence towards her. He left school at about the age of 12 at the Year 6 level and is barely able to read and write. After leaving school he went to work cottonchipping and shearing with his stepfather. He admits to extensive drug and alcohol use since the age of about 11. He apparently first smoked cannabis at about the age of seven and was a regular drug abuser from the age of 16. He also sniffed petrol when younger. He told Dr Nielson that he drinks all the time and has experienced several severe withdrawal deliriums. He has been using amphetamines since about the age of 16 and has also used heroin on a regular basis. He commenced using cocaine about six years ago. Whilst in custody he has commenced on the methadone program and is currently receiving 40mls daily. He has a criminal record extending back to 1993 when he and other youths attacked some businessmen at Lavender Bay Wharf and robbed them of their wallets. The victims were assaulted with a piece of timber and kicked to the head and body and Thurston admitted to assaulting the victims and kicking one of them to the head about twice. He has other convictions for robbery whilst armed (with a pair of scissors), assault police, resist arrest, behave in a disorderly manner, possess prohibited drug and breach of a domestic violence order. Since his arrest on this matter he has been convicted of assault occasioning actual bodily harm arising out of an incident in prison where he assaulted the victim by punching him about 10 times to the head, provoked, he claimed, by derogatory remarks made towards him by the victim. For this he was sentenced to a fixed term of imprisonment of 6 months from 16 July 2001 to 15 January 2002. Notwithstanding his previous convictions, when released on parole no steps appear to have been taken to curb his alcohol and other drug abuse. Whilst in prison on remand for this offence he was seen by the Drug and Alcohol Service, but by the time programs were made available to him, he declined to be involved, and he has never attended any formal drug rehabilitation. Julie Hendy, neuropsychologist, concluded that he probably fell at the low end of the normal range of intelligence and that his reading and writing skills were consistent with those expected from a child aged about seven and a half years. She was of the view that his anxiety and stress levels are in the mild to moderate range and his depression level in the extremely severe stage, although these assessments appear to have been made in January 2002, that is before his trial (see date at top of each page of her report, except the first page). He also has been in protection, apparently because of the risk of self-harm, and whilst in custody he has been undertaking courses in oral communication. He told the person who prepared the Pre-Sentence Report that he "feels bad" about the offence. 21 After his arrest, Lamb told the police that he and Thurston had spoken to the deceased and had drunk wine with him. They went to leave, but as they walked away the deceased called them "black cunts". He, Lamb, punched the deceased and knocked him to the ground. He and Thurston then attacked the deceased on the ground. Lamb kicked the deceased a number of times and stomped on his head. 22 The appellant told his former de-facto wife that he had been present during the attack, the motive for which was robbery. However, his Honour thought it unclear from the evidence whether the appellant was saying that robbery was the idea of the two of them or just Lamb's. 23 The appellant's evidence and defence at the trial, the effect of which were that he was not involved in the attack, were rejected by the jury. The trial judge observed that the marks of projected blood as well as transferred blood on the appellant's jeans and shoes indicated his involvement in the attack. That conclusion was reinforced by evidence of a linear bruise on the deceased's left forehead, matching the pattern of the heel of one of the shoes worn by the appellant. 24 His Honour largely rejected the accounts put forward by the appellant, including that in his evidence at the trial. He was satisfied that after they met the deceased and drank some of his wine the appellant and Lamb decided to rob him of his wine and any cash he might have on him. So Lamb knocked him down and both of them, no doubt inflamed by the alcohol they had drunk, lost their self control and kicked and stomped on him until he was dead. 25 Dealing with the relative parts played by the appellant and Lamb, his Honour said this- Having regard to the fact that Lamb had been behaving aggressively to other persons earlier in the evening whilst Thurston had been trying to restrain him, and on his own admission Lamb had started the assault by punching the deceased and knocking him to the ground, I am satisfied that he was, initially at any rate, the principal aggressor; but I am also satisfied that Thurston subsequently played an equally aggressive part. I therefore regard the objective culpability of Lamb as somewhat greater than that of Thurston.

26 It was submitted on appeal that the appellant had a legitimate sense of grievance arising out of Lamb's sentence, bearing in mind the finding that Lamb had started the violence and was, in the first place at least, the principal aggressor. Lamb also had a considerably worse criminal record than the appellant. It was submitted that the difference between the sentences did not properly reflect those differences. 27 I do not think that Lamb's record, which was certainly somewhat worse than the appellant's, and the fact that he delivered the first blow, combined to necessitate sentences whose lengths differed by more than one year. These were matters for impression and I am not satisfied that the impression received by his Honour, judging by the sentences imposed, was wrong. As his Honour found, once the attack was under way both offenders lost their self control and kicked and stomped on the deceased until he was dead. His Honour's summary of the injuries inflicted on the deceased is set out in the judgment of Hidden J. 28 It was submitted on appeal that the decision in this Court in R v Fernando (1992) 76 ACrimR 58 supported a finding of special circumstances justifying the reduction of the non-parole period. Reference was made to the appellant's aboriginality, deprived upbringing, substance abuse beginning in childhood, criminality arising out of substance abuse and playing a major part in the instant crime and the need for a lengthy period of supervision on parole. It was submitted that the circumstances pointed to an extended additional term to facilitate rehabilitation and a reduced non-parole period to reflect the subjective considerations relating to aboriginality. Reference was made to R v Bell [1999] NSWCCA 423, Ceissman (2001) 119 A Crim R 535 and Weldon [2002] NSWCCA 308. 29 His Honour referred to R v Fernando and R v Ceissman as well as R v Fernando [2002] NSWCCA 28. Having done so his Honour said this- Aboriginal persons who commit crimes of violence are not to be accorded special treatment by the imposition of lighter sentences but, although drug or alcohol abuse is not normally a mitigating factor, it can be taken into account when, as here, it reflects the socio-economic circumstances and environment in which the prisoners have grown up and their lack of opportunity for self improvement. But at the same time, it must not be overlooked that the objective gravity of the offence is very serious and a human life has been unlawfully and unjustifiably taken in what must have been a slow, painful and undignified agony for the victim. 30 His Honour concluded that accordingly the sentences imposed had to be substantial. 31 His Honour took the view that no non-parole period less than the one imposed on the appellant would be sufficient to reflect the objective gravity of his offence. Bearing in mind the horrific nature of the attack, the resulting injuries and the agonising death of the deceased, that is a view to which in my opinion his Honour was fully entitled to come. 32 It has not been made to appear to me that the imposition of a non-parole period no less than three quarters of the head sentence was outside the range of his Honour's discretion. As it stands, the parole period of four years and three months is substantial. 33 In my opinion neither ground of appeal has been made good. I would grant leave to appeal but would refuse the appeal against sentence. 34 NEWMAN AJ: I agree with Hidden J that an adequate summary of the evidence and issues of the trial is to be found in Dunford J's remarks on sentence. 35 I also agree with Hidden J that the trial judges directions in relation to the concept of felony murder were inadequate. Inadequate because his Honour did not, in dealing with that topic, make it plain to the jury that the crown had to establish that the appellant not only had a shared intention to rob with his accomplice Lamb but also that the appellant had contemplated that in the course of carrying out the robbery its victim might be wounded or suffer grievous bodily harm. Accordingly I agree with Hidden J that in that regard his Honour the trial judge was in error. 36 Unfortunately that is where my agreement with Hidden J ends. 37 As Hidden J rightly points out in his reasons the trial judge left murder to the jury on all the bases expressed in section 18 of the Crimes Act including if the jury found that the act of the accused which caused the death of Mr Byrne was accompanied by an intention to kill or inflict grievous bodily harm then the jury would find the appellant guilty of murder. Hidden J concluded that while there were weighty arguments for the application of the proviso to section 6(1) of the Criminal Appeal Act to apply in this case he was of the view that it should not be applied. It is here that I disagree with Hidden J. Hidden J rightly referred to the decision of the High Court in Festa v The Queen (2001) 208 CLR 593 in dealing with this question. 38 In his judgment commencing at page 627 McHugh J dealt with the history of the interpretation of the proviso by the High Court beginning with the Judgment of Fullagar J in Miraz v The Queen (1955) 93 CLR 493. He adverted to what had fallen from Barwick CJ in R v Storey (1978) 140 CLR 364 at 376 and in Driscoll v The Queen (1977) 137 CLR 517 at 524-5. He also referred to what had fallen from the High Court in Wilde v The Queen (1988) 164 CLR 365. Thus McHugh J also dealt with the judgment of Channell J in R v Cohen and Bateman (1909) 2 Cr App R 197 when his Lordship dealt with section 4 of the English Act which was in identical terms with the proviso to section 6(1) of the NSW Act. He also adverted to Brooking JA's observations in R v Gallagher (1998) 2 VR 671 at 676 and remarks of the Court Marshall's Appeal Tribunal in Re Johnston's Appeal (1960) 9 FLR 31 at 49. 39 Having carried out that review of authorities McHugh J concluded as follows:- "The question whether a jury, acting reasonably, would inevitably have convicted an accused ultimately falls to be determined by the relevant court according to its assessment of the facts of the case (113). The prevalence of dissenting views in cases dealing with the application of the proviso (114) illustrates the largely subjective nature of the inquiry, resting as it does on factors such as the error alleged, the relative strength of the prosecution and defence cases and the court's characterisation of the hypothetical jury, "acting reasonably" and properly directed. As Brennan, Dawson and Toohey JJ stated in Wilde (115) "In the end no mechanical approach can be adopted and each case must be determined upon its own circumstances." But one important development has occurred since this court considered Miraz, Storey, Driscoll and Wilde. Courts of Criminal appeal are now required to examine and analyse the evidence in criminal trials to a much greater extent than previously. This court has interpreted the "miscarriage of justice" ground of appeal as entitling a court of criminal appeal to examine the whole of the evidence and form its own opinion as to whether there is a reasonable doubt as to the accused's guilt. Even thirty years ago such an approach would not have been contemplated. In M v The Queen (116) Mason CJ, Deane, Dawson and Toohey JJ said: "In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. " Although the term miscarriage of justice appears both as ground of appeal and as part of the criterion for determining whether a conviction should stand, the issue under each provision is different. In one, the issue is whether the jury must have had a reasonable doubt; in the other, it is whether the jury must have convicted. But that said, there is no reason why the role of a court of criminal appeal should differ in deciding these issues. In examining the evidence for the purpose of applying the proviso, the court should assume that ordinarily if it thinks that the accused must be convicted, so would a reasonable jury. Speaking generally, the court's view of the evidence should prevail except where the error has so affected issues of credibility that the court cannot determine what are the primary facts of the case. In cases of circumstantial evidence, for example, the court's view of the evidence should be regarded as the view of the reasonable jury unless proof of one or more circumstances has been affected by an error relating to credibility. Even when a particular circumstance involves a credibility issue, other circumstances may be admitted or proved which are sufficient to permit the court to sustain the conviction." 40 Why is it then that I am of the view that after examining the evidence I have concluded that the accused must be convicted? 41 First because there is no suggestion that Dunford J erred in directing that if the jury were to find that the death of the deceased was caused by the act of the appellant accompanied with an intention to kill or cause grievous bodily harm, the jury should find the appellant guilty of murder. 42 At the trial it was common ground that there were only three persons involved in the events which led to the death of the deceased. They were the deceased himself, the appellant and Stanley Lamb. As Dunford J pointed out in his findings on sentence the pathologist Dr Sugo identified no less than twenty-seven separate lacerations or areas of bruising to the head and neck as well as fractures to the ribs. All injuries sustained were consistent with kicking and stomping on the deceased while he lay on his back on the ground. Dr Sugo finds that the format of the lacerations and bruising were such as to be consistent with the pattern on a Rockport shoe which was worn by the appellant. I should add there was no issue that the Rockport shoe was another than the appellant's. Additionally Dr Sugo's evidence was that the format of the injuries was inconsistent with the pattern of the shoes worn by the accomplice Lamb at the time. 43 In his judgment Hidden J observes:- "On the other hand, the evidence of another forensic pathologist, called in the defence case, questioned whether there could be said to be a match between the bruise and the appellant's shoe, although it could not be excluded." 44 Indeed this is so. What the pathologist Professor Stephen Cordner had to say was this:- CROWN PROSECUTOR: Q. "But would you exclude the Rockport shoe? A. Well for the same reasons that I am cautious including it. That means that you can't be excluding it. The reason that you can't exclude it, if it's relatively small, or relatively indistinct, doesn't leap out at you and say there is only one conclusion, it must be that shoe. So for the same reason that I think you can't be - you can't feel confident - or I can't feel confident that it's this shoe for the same reason and, you know, it can't be excluded." 45 What then does the evidence reveal? First, that there were three persons involved in the subject episode; the deceased, the appellant and Lamb. Second, that the deceased died as a result of injuries inflicted upon him by way of stomping. Third, a shoe pattern was found on pathological examination of the deceased's injuries. Fourth, the pathological evidence reveals that those shoe patterns could not be those of the shoes worn by Lamb. Fifth, one pathologist Dr Sugo concluded that the shoe pattern was consistent with the shoes worn by the appellant. Another pathologist Professor Cordner while not saying that pattern was that of the shoes of the appellant could not exclude the pattern marks as being of the appellant's shoes. Professor Cordner did not challenge Dr Sugo's findings that the pattern could not be that of Lamb's shoes. 46 On that evidence I am of the view that only one conclusion is open - namely that it was the accused who stomped on the deceased. Adopting what fell from McHugh J in Festa's case if I am of that view then so would a reasonable jury. Accordingly I am of the view that the proviso applies and that the appellant's appeal against conviction should be dismissed. 47 As far as the application for leave to appeal against his Honour's sentence is concerned, I have had the advantage of reading in draft the judgment of Barr J on this aspect of the matter. I agree with both his reasons and the orders he proposes in this regard.

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