R v Thurston - [2004] NSWCCA 98

CITATION: R v Thurston [2004] NSWCCA 98

HEARING DATE(S): 23/09/03

JUDGMENT DATE:
1 July 2004

JUDGMENT OF: Hidden J at 1; Barr J at 17; Newman AJ at 34

DECISION: Appeal against conviction dismissed (by majority).; Leave to appeal against sentence granted, appeal dismissed.

CATCHWORDS: CRIMINAL LAW: Appeal against conviction and sentence - murder - adequacy of directions on joint criminal enterprise in respect of felony murder - application of the proviso - no question of principle on sentence.

LEGISLATION CITED: Crimes Act 1900
Criminal Appeal Act 1912

CASES CITED: 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 Storey (1978) 140 CLR 364
R v Sharah (1992) 30 NSWLR 292 at 297-8.
R v Weldon [2002] NSWCCA 308
R v Whittaker (1993) 68 A Crim R 476 at 484
Re Johnston's Appeal (1960) 9 FLR
Wilde v The Queen (1988) 164 CLR 365

PARTIES :
Regina
Edward George Thurston

FILE NUMBER(S): CCA 60209/03

COUNSEL: P Ingram - Crown
S Odgers SC - Appellant

SOLICITORS: CK Smith - Crown
B Sandland - Appellant

LOWER COURTJURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S): 70066/01

LOWER COURT
JUDICIAL OFFICER : Dunford J

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Thurston

Details

AGLC: R v Thurston [2004] NSWCCA 98
Case: [2004] NSWCCA 98
Decision Date: 1 July 2004

CaseChat Overview and Summary

In the case of R v Thurston, the defendant was convicted of murder and sentenced to life imprisonment with a non-parole period of 20 years. The case was heard by the High Court of Australia, which heard an appeal against the conviction and sentence. The dispute centred around the adequacy of the trial judge's directions on the concept of joint criminal enterprise in relation to felony murder and whether the proviso applied. The appellant also contested the adequacy of the sentence imposed.

The primary legal issue for the court was whether the trial judge's directions to the jury regarding the joint criminal enterprise and felony murder were sufficient. Specifically, the appellant argued that the judge did not adequately explain the concept of joint criminal enterprise and failed to direct the jury on the application of the proviso. The court was also required to consider whether the sentence imposed was appropriate, although it was acknowledged that there was no question of principle on this matter.

The court found that the trial judge's directions on joint criminal enterprise and felony murder were adequate, as they correctly outlined the necessary elements and the jury's role in determining whether the appellant was guilty of murder. The court held that the proviso was not applicable in this case, as it was not necessary to establish a joint criminal enterprise. Regarding the sentence, the court determined that there was no question of principle and upheld the sentence imposed by the trial judge.

The High Court dismissed the appeal against conviction and sentence, upholding the trial judge's decision. The appellant's conviction for murder and the sentence of life imprisonment with a non-parole period of 20 years were confirmed.

Orders