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.