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Court of Criminal Appeal 1 July 2004

Thurston v R

[2004] NSWCCA 98

Assault & violenceHomicide
MURDER APPLICATION OF THE PROVISO NO QUESTION OF PRINCIPLE ON SENTENCE.

Citation: Thurston v R [2004] NSWCCA 98
Court: New South Wales Court of Criminal Appeal
Date: 1 July 2004
Judges: Hidden J, Barr J, Newman AJ

Background

The appellant and his stepbrother were jointly tried for the murder of a man in a Tamworth park on the evening of 29 October 2000. Both had spent the day drinking heavily with others in the area. The deceased, who had been dropped near the park after leaving a hotel, was found dead at the scene. He had suffered catastrophic injuries consistent with repeated kicking and stomping while lying on the ground.

The appellant was found asleep at a nearby address with blood on his clothing. In his initial police interview he denied involvement, claiming he had found the deceased already lying injured. At trial he gave evidence broadly consistent with that account. His stepbrother, in his own police interview, described a joint assault, stating the appellant had kicked the deceased approximately one hundred times and had urged the stepbrother to join in.

Both men were convicted of murder. The trial judge sentenced the appellant to seventeen years' imprisonment with a non-parole period of twelve years and nine months. The appellant challenged both his conviction and his sentence on appeal.

  • Whether the trial judge's directions to the jury on joint criminal enterprise in the context of felony murder were adequate
  • Whether any misdirection in those directions was sufficiently serious to warrant a new trial, or whether the proviso under the Criminal Appeal Act 1912 applied to cure the error
  • Whether there was any appealable error in the sentence imposed

Decision

The Court of Criminal Appeal was divided on the conviction appeal, with the majority dismissing it. The principal ground of appeal concerned the adequacy of the trial judge's directions on joint criminal enterprise, particularly as they applied to felony murder (murder arising in the course of a joint criminal enterprise to commit a serious offence). The majority accepted there were deficiencies in the directions but held those deficiencies did not require a new trial.

The majority applied the proviso under the Criminal Appeal Act 1912, which permits a court to dismiss an appeal despite identifying a legal error if no substantial miscarriage of justice has actually occurred. The critical question was whether, on the whole of the evidence, a reasonable jury would inevitably have convicted regardless of the misdirection.

Newman AJ, in a separate judgment, placed particular emphasis on the forensic pathology evidence. Dr Sugo concluded that a shoe pattern found on the deceased's injuries was consistent with shoes worn by the appellant and inconsistent with those worn by the stepbrother. A second pathologist called by the defence did not challenge the exclusion of the stepbrother's shoes and could not exclude the appellant's shoes as the source of the pattern. On that evidence, Newman AJ concluded that only one conclusion was open: the appellant had stomped on the deceased. That finding supported the application of the proviso.

On sentence, the Court granted leave to appeal but dismissed the appeal, finding no question of principle arose and no appealable error in the sentence imposed.

Orders Made

  • Appeal against conviction dismissed (by majority)
  • Leave to appeal against sentence granted; appeal against sentence dismissed

Key Takeaways

  • In dismissing the conviction appeal, the Court of Criminal Appeal confirmed that deficient jury directions on joint criminal enterprise do not automatically require a new trial where the proviso under the Criminal Appeal Act 1912 applies.
  • The proviso may be applied where the appellate court is satisfied that a reasonable jury, properly directed, would inevitably have returned the same verdict on the available evidence.
  • Forensic pathology evidence linking a specific shoe pattern to the accused, and excluding the co-accused, can constitute a sufficiently compelling foundation for the application of the proviso.
  • A co-accused's out-of-court statements to police describing the appellant's role in the assault were not admissible as evidence against the appellant, illustrating the limits on the use of such material in joint trials.
  • No question of principle arose on sentence, confirming that sentence appeals in cases of this kind will not succeed without identifying a specific legal or discretionary error.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW)
- Criminal Appeal Act 1912 (NSW)

Cases
- Driscoll v The Queen (1977) 137 CLR 517
- Festa v The Queen (2001) 208 CLR 593
- Miraz v The Queen (1955) 93 CLR 493
- R v Bell [1999] NSWCCA 423
- R v Ceissman (2001) 119 ACrimR 535
- R v Cohen & Bateman (1909) 2 Cr App R 197
- R v Fernando (1992) 76 ACrimR 58
- R v Gallagher (1998) 2 VR 671
- R v Munro (1981) 4 ACrimR 67
- R v Sharah (1992) 30 NSWLR 292
- R v Storey (1978) 140 CLR 364
- R v Weldon [2002] NSWCCA 308
- R v Whittaker (1993) 68 ACrimR 476
- Re Johnston's Appeal (1960) 9 FLR
- Wilde v The Queen (1988) 164 CLR 365