R v Yates - [2002] NSWCCA 520

CITATION: R v Yates, Parry, Hyland, Powick [2002] NSWCCA 520

FILE NUMBER(S): CCA 60361/01; 60379/01; 60412/01; 60434/01; 60427/01

HEARING DATE(S): 25/3/02, 26/3/02, 26/8/02, 20/9/02, 19/12/02

JUDGMENT DATE:
20 December 2002

PARTIES :

Regina
Barry James Yates
Robert Owen Parry
Dean Hyland
Brad Powick

JUDGMENT OF: Wood CJ at CL at 1; Hulme J at 1; Buddin J at 1

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S) : 70202/00; 70201/00; 70012/00; 70067/00

LOWER COURT JUDICIAL
OFFICER : Ireland AJ

COUNSEL : R A Hulme (Crown)
K G Horler QC with M Austin (Yates)
J W Conomos (Parry)
G J Sundstrom (Hyland)
D G Dalton (Powick)

SOLICITORS: S E O'Connor
John Bettens & Co (Yates)
Kevin Solari (Parry)
Braye Cragg (Hyland)
Greg Murray (Powick)

CATCHWORDS: CRIMINAL LAW - appeal against conviction and sentence - murder conviction - Analysis of DNA evidence - witness evidence after lapse of time - identification evidence - Chamberlain direction - whether verdicts unreasonable and supported by the evidence.

LEGISLATION CITED: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Act 1912
Evidence Act 1995
Evidence (Audio and Visual Links) Act 1998

CASES CITED:
Adam v The Queen (2001) 207 CLR 96
Alexander v The Queen (1981) 145 CLR 395
Azzopardi v The Queen (2001) 205 CLR 50
Benecke v R (1999) 106 A Crim R 282
Domican v The Queen (1991-1992) 173 CLR 555
Edwards v The Queen (1993) 178 CLR 193
Festa v The Queen [2001] 185 ALR 394
Jones v The Queen (1998) 191 CLR 440
Lowe v The Queen (1984) 154 CLR 606
M v The Queen (1994) 181 CLR 487
Morris v The Queen (1987) 163 CLR 454
Mraz v The Queen (1955) 93 CLR 493
Papakosmas v The Queen (1999) 196 CLR 297
Pearce v The Queen (1998) 194 CLR 610
R v Barbaro & Rovere (2000) 112 A Crim R 551
R v Birks (1990) 19 NSWLR 677
R v Black [2001] NSWCCA 41
R v Clark [2001] NSWCCA 494
R v Clout (1995) 41 NSWLR 312
R v Coe [2002] NSWCCA 385
R v Cameron (2002) 187 ALR 65
R v Carusi (1997) 92 A Crim R 52
R v Clarke (1997) 97 A Crim R 414
R v Coe [2002] NSWCCA 385 at para 67
R v Doheny and Adams [1997] 1 Cr App R 369
R v Eldridge [2002] NSWCCA 205
R v Fowler [2000] NSWCCA 142
R v Galli [2001] NSWCCA 504
R v Gee [2000] NSWCCA 198
R v GK (2001) 53 NSWLR 317
R v Henry (1999) 46 NSWLR 346
R v Hogan [2001] NSWCCA 292
R v Ignjatic (1993) 68 A Crim R 333
R v Keir [2002] 2 NSWCCA 30
See R v Lawrence [1980] 1 NSWLR 122 at 148
R v Ian Van Le [2002] NSWCCA 186
R v Leroy [2000] NSWCCA 302
R v Lisoff [1999] NSWCCA 364
R v Moussa [2001] NSWCCA 427
R v Nguyen [2002] NSWCCA 342
R v Richards [2002] NSWCCA 38
R v Roberts [2001] NSWCCA 163
R v Rose [2002] NSWCCA 455
R v Singh-Bal (1997) 92 A Crim R 397
R v Stone (1981) VR 737
R v Tevendale (1955) VLR 95
R v To [2002] NSWCCA 247
R v Thomson & Houlton (2000) 49 NSWLR 383
R v Young [1999] NSWCCA 275
RPS v The Queen (2000) 199 CLR 620
Stanoevski v The Queen (2002) 202 CLR 115
State Rail Authority of New South Wales v Earthline Constructions Pty Limited (1999) 160 ALR 588
TKWJ v The Queen [2002] HCA 46
Wu v The Queen (1999) 199 CLR 99

DECISION: Robert Parry:; 1.Appeal against conviction dismissed; 2.Leave to appeal against sentence granted.; 3.Appeal dismissed.; Dean Hyland:; 1.Appeal against conviction dismissed.; 2.Leave to appeal against sentence granted.; 3.Appeal dismissed.; Barry Yates:; 1.Appeal against conviction dismissed.; Bradley Powick:; 1.Appeal against conviction dismissed.; 2.The robbery matter:; (i) Extension of time within which to apply for leave to appeal against sentence granted.; (ii) Leave to appeal against sentence granted.; (iii) Appeal against sentence allowed.; (iv) Sentence imposed in the District Court quashed. In lieu thereof the applicant is sentenced to imprisonment for a fixed term of three years, to commence on 10 March 1999 and to expire on 9 March 2002.; 3. The s 111(3) offence and the accessory after the fact offence: ; (i) Leave to appeal against sentence granted.; (ii) Appeal against sentence allowed.; (iii) Sentences imposed in the Supreme Court quashed. In lieu thereof the applicant is sentenced, in relation to the s 111(3) offence, to imprisonment for nine years to commence on 10 January 2001 and to expire on 9 January 2010. A non-parole period of five years and six months is fixed, to commence on 10 January 2001 and to expire on 9 July 2006 at which time he will be eligible for release to parole. The sentence imposed in respect of the offence of accessory after the fact to murder, of a fixed term of 3 years, is confirmed however it is now to commence on 10 January 2001. It is to be served wholly concurrently with that for the s 111(3) offence.

- 124 -

60361 of 2001
60379 of 2001
60412 of 2001
60247 of 2001

WOOD CJ AT CL
HULME J
BUDDIN J

Friday 20 December 2002

R v Barry James YATES

R v Robert Owen PARRY

R v Dean HYLAND

R v Bradley POWICK

Judgment

1 THE COURT: The appellants Dean Hyland, Robert Parry and Barry Yates, were charged with, and convicted of, the murder of Alan Brown on 3 October 1998. They, as well as Bradley Powick, were also charged with, and convicted of, home invasion in circumstances of special aggravation, namely that they were armed and wounded two men, Paul Steengraver and Alan Brown. Powick was charged with, and convicted of, an additional count of being an accessory after the fact to murder, in that he had made false statements to police regarding his companions, in order to deflect attention away from those responsible for the murder. One further person, Darren Wall, was also presented for trial, in his case upon charges of being an accessory after the fact to murder, and of inciting Karen Sproule and Stephen Lester to provide a false alibi, with intent to pervert the course of justice. He was convicted of both offences but did not appeal against his convictions or seek leave to appeal against the sentences imposed upon him.

2 The trial was conducted at Newcastle before Ireland AJ and a jury, between 1 February 2001 and 11 April 2001. Sentences were passed on 7 June 2001.

3 Appeals have been lodged against the convictions, and leave has been sought to appeal in respect of the sentences imposed. Powick, additionally, seeks leave to appeal against an earlier sentence which had been imposed in the District Court, upon which the further sentences passed by Ireland AJ were to be served by way of an accumulation.

Facts

4 The facts, which Ireland AJ accepted as having been established by the Crown, are conveniently set out in the reasons for the sentences which were imposed by his Honour, as follows:

“ On the afternoon of Friday 2 October 1998 the offender Wall and his de facto wife Renee Russell received a telephone call, in response to which they drove their Ford Falcon Sedan registered number NUR.593 to the home of one Paul Webb at 255 Pacific Highway, Belmont North. This motor vehicle was made available to the four offenders Hyland, Parry, Yates and Powick, who drove off in a southerly direction. The driver of the car was Powick. All four were wearing dark clothing.

Prior to its departure the boot of the car was loaded with a revolving pistol, a shortened shotgun and a baseball bat.

Shortly after midnight the Ford Falcon, driven by Powick with Hyland, Parry and Yates as passengers, was parked in the near vicinity of the dwelling house at 4 Levitt Street, Wyong. This residence had been owned by a Mr Brian Shearer, who was, on the evidence, a supplier of marijuana, and who had met his death in apparently unrelated events one week previously.

The deceased victim Alan Brown and his brother David, who were nephews of Brian Shearer, were present with a number of others in the house that night. Two young men, Daniel Harrison and Derryn King, were outside the front of the house when accosted by Hyland, Parry and Yates. Mr Harrison, who was threatened and struck with a baseball bat, escaped, however, Derryn King, who had been tackled to the ground by the offender Hyland, was forced into the house.

The offenders once inside the house were seen to be wearing dark clothing, and were disguised by wearing balaclavas. Nevertheless the evidence adduced from a number of witnesses, and certain distinctive features and clothing, make it plain to the relevant degree that the offender Parry was armed with the revolver, the offender Hyland was armed with the shortened shotgun, and the offender Yates was armed with the baseball bat.

The offender Yates was observed to be wearing a distinctive black Metallica T-shirt bearing a large snake emblem and the words " Don't tread on me". He was wearing this T-shirt some hours later when spoken to by police (albeit then worn inside out), and surrendered this garment to the questioning police officers.

The offender Parry wore his hair in a single long plait which extended down his back. The person so described was observed to be carrying the revolver.

The offender Hyland is of stockier build (as described) than both the offenders Parry and Yates. He was armed with the shortened shotgun which he pointed at the head of Derryn King from a distance of some two metres, and ordered him inside the house.

The events which transpired once the three offenders had forced their way into the house were horrific in the extreme. Some of the occupants were able to flee, leaving two women and three men at the mercy of the three offenders, who demanded to be told the whereabouts of $20,000 said to be owed by the late Brian Shearer.

Mr Paul Steengraver, one of the occupants, was struck on the head and wounded by a blow from the shortened shotgun. The gun was put to his knees and he was told that he would never walk again if he did not disclose the whereabouts of the money, of which he and the others remaining in the house had no knowledge. The shortened shotgun was placed in Mr Steengraver's buttocks and also in his mouth in the course of the threats to which he was subjected.

The baseball bat wielded by the offender Yates was used to administer blows to Mr Harrison, Mr King and Ms Coenradi on repeated occasions whilst they were at times under threat from the revolver held by the offender Parry, and at other times the shotgun held by the offender Hyland.

The evidence of the forensic pathologist Dr Oettle makes it plain that Alan Brown had been subjected to beating with the baseball bat prior to him being shot at close range to the side of his neck behind the left ear, the shot severing his spinal cord in what has aptly been described by counsel as an "execution style killing".

The offender Parry, together with the offender Yates, took Alan Brown into the main bedroom, where he was beaten and then shot. The only reasonable inference open on the evidence is that this brutal killing was carried out by the offender Parry in the presence of the offender Yates when the victim was unable to satisfy the demands of the offenders.

The offender Parry entered the second bedroom where Mr King, Ms Williams and Ms Coenradi had been ordered to lie on the bed, and held them under threat with the revolver whilst the offender Yates struck Mr King and Ms Coenradi a number of times with the baseball bat whilst demands were made for money.

The offender Parry placed the revolver under Mr King's chin, pulled him from the bed, and took him to the main bedroom where he exhibited the body of Alan Brown; asked him what it was and if he wanted to be "number two", in an effort to have Mr King tell him where "the money" was. The offender Parry at pistol point escorted Mr King back to the second bedroom, where he was again struck with the baseball bat by the offender Yates.

A conversation took place between the offenders in which the question "what will we do with these (three people)" brought a response to the effect that they were to be shot, as one of the occupants had already been shot. Ms Williams, who with Ms Coenradi and Mr King had been ordered to lie on the bed, turned her face to the wall expecting to be fatally shot. The three offenders left the house, the offender Parry having pointed the revolver at Mr King, saying "we will be back".

The three offenders entered the Ford Falcon in which the offender Powick was waiting, and left the scene of the home invasion and murder, heading north along the Pacific Highway. Mr Jody Kiriona, who lived nearby, and whose aid had been enlisted by one of the occupants who had fled from the house, followed the getaway car for some ten kilometres, pausing only to request a group of bystanders to call the police.

In a location where the Pacific Highway passes through thick bushland near San Remo, Mr Kiriona flashed his headlights at the Ford Falcon, which pulled over to the side of the road. The three offenders Parry, Hyland and Yates decamped. Mr Kiriona detained the offender Powick, enlisting the aid of a passing taxi driver to direct police to the location .

The apprehension of the offender Powick and the detention of the car were highly significant events. The car contained certain items, including two balaclavas, and bore a blood stain which, when combined with items discovered in the invaded house, furnished DNA evidence of great cogency, and virtually ensured the conviction of the offenders Parry, Hyland and Yates once their identity had been established. One cannot but commend in the highest terms the courageous actions of Mr Kiriona, without whose intervention, which resulted in the arrest of the offender Powick and the detention of the getaway car, the Crown case would have been gravely, perhaps fatally, impeded.

The knowledge which the offender Powick had as to the purpose of the armed invasion by the balaclava-clad co-offenders, including the possible use of these arms to wound, together with his role as driver of the getaway car, was the basis of his conviction as a principal in the second degree on the charge of house invasion in circumstances of special aggravation. Following his arrest in the early hours of Saturday 3 October 1998 the offender Powick undertook an ERISP with Detective Sergeant Wrice (now Chief Inspector) and Senior Constable Bailey, in which he agreed to have his hands scientifically examined for gunshot residue but declined to answer questions about his involvement in events in the absence of legal representation.

On 7 October 1998 the offender Powick undertook a second ERISP with the same police officers, on this occasion specifically declining legal representation. The ERISP comprised of some five hundred questions, the answers to which, on the evidence adduced in the trial, may properly be described as encompassing a tissue of lies, and deliberate misdescriptions of the co-offenders Hyland, Parry and Yates, their names, appearance, ages and background were clearly intended to assist those co-offenders by impeding, misleading and deflecting investigating police officers in their inquiries. Upon the basis of this assistance to the co-offenders the offender Powick was convicted of being an accessory, after the fact, to the murder of Alan Brown.”

5 Evidence was led in support of the Crown case in relation to the following matters:

(a) Persons observed at the Royal Hotel, Wyong on the evening of 2 October:

6 Three bar attendants (Shireen Lamont, Rhonda Alderice and Lindy Bills) and the assistant manager (John Anthony) from the Royal Hotel in Wyong, described seeing a group of men at the hotel during the evening of 2 October. They were dressed in black, and one of them had tattoos and hair, which was variously described as a “plait” or “pony tail”, or “rat’s tail”. Photographs of the appellant Parry showed that he had a long pony tail as at 2 October.

(b) Events at 4 Levitt Street on 2 & 3 October

7 Derryn King, who called in at 4 Levitt Street, with a friend Daniel Harrison, during the evening, in order to buy drugs, observed three men wearing black clothing and black balaclavas crouched beside the front fence of the neighbouring premises. He was tackled by one of the men whom he described as Caucasian, in his twenties or early thirties, about 6 foot 1 inch tall, of medium build, and who was carrying a sawn off shotgun. He saw Harrison being belted with a baseball bat, which he noticed was of an “Easton” brand. After King was forced inside and made to lie on the floor alongside two women, he saw a man, who was carrying a pistol. This man he described as tall, stocky, with tattoos on his arms and a rat’s tail half way down his back. Demands were made for money.

8 He was made to move into a bedroom with the two women where they were covered by the man with the shotgun. Whilst there, he could hear yelling, followed by the sound of smashing and a gunshot. The other men came into the bedroom carrying, respectively, a pistol and a baseball bat. After being struck with the bat, King was taken to the main bedroom by the man with the pistol, where he was shown the body of Alan Brown and questioned in relation to the whereabouts of the money. He was taken back to the other bedroom, and hit again with the bat, before the man with the pistol said “we will be back”.

9 Harrison supported King’s version of events, but added that before reaching Levitt Street, he had seen three men get out of a light coloured Ford Falcon in Warner Street. He thought that there was a fourth man in the driver’s seat. When he reached Levitt Street he saw three men crouched alongside the fence, one of whom confronted him. This man, he said, was 175-180 cm tall, with a broad build and a bushy dark beard. He was wearing black clothes, including a worn black Metallica T-shirt with the words “Don’t tread on me” and a picture of a snake. He saw King being forced into the premises at 4 Levitt Street, and he was himself struck across the elbow by a man carrying a baseball bat, who instructed him to “fuck off” – an instruction with which, not surprisingly, he complied.

10 There was evidence that when the appellant Yates was later arrested, he was wearing a black Metallica T-shirt (Exhibit AR). When Harrison was shown this article by Detective Sergeant Allison, on 6 November 1998, he said that it was similar to the one which had been worn by the man who had confronted him.

11 Harrison could not, however, pick Yates from a folder of 14 photographs shown to him by police.

12 Nigel Wood, who had been inside the premises, took refuge behind an old motor vehicle in the back yard, when the men burst in. He described seeing a man with a black balaclava, and hearing banging and shouting from inside the premises including the words “I want the fucking money, I want it now”. He elected for a greater place of safety by jumping over the adjoining fence and by crouching down behind the palings. While there he saw Paul Steengraver being led out into the yard, and he heard a gunshot. He went out the front and called out for someone to contact the police. He saw a “big Pacific Islander guy” approach the front door, armed with a piece of wood. One of the men who had invaded the premises came out to the porch and threatened this man. Soon afterwards he saw three men come out of the front door and walk away. A pair of latex surgical gloves was found by him next to the fence of 2 Levitt Street.

13 Nigel Cooper, who lived at 4 Levitt Street with his de facto partner, Alison Coeradi, confirmed that it had been the practice of the late Brian Shearer to sell marihuana from those premises, before his death. He indicated that it was he who had opened the door to the invaders, after hearing a dog barking. He said that, in the process of trying to repel them, he had been struck by a man in black clothing, who was wearing a black balaclava. He managed to escape out the front and ran to the premises of a neighbour to call for help.

14 David Brown, the brother of the deceased, who went to the front door with Cooper, after hearing a dog bark, confirmed seeing him being attacked. He was able to run out the back door, and then up the driveway to the front of the house, where he called out for someone to contact the police. He heard yelling and demands for money, as well as a gunshot. After throwing a brick through the front door, he ran down the other side of the house, from which position he heard someone ask, from inside a bedroom, “What should we do with them? Shall we kill them all?” He threw a cigarette lighter at the side window, breaking it, before returning to the front yard, where he was joined by a neighbour of Islander appearance, Jody Kiriona.

15 He saw three men come out from the premises, one with a baseball bat, one with a pistol, and one with a shotgun. The man with the pistol walked towards him and Mr Kiriona and inquired, “Do you want to be heroes?” He saw the men run up Levitt Street towards Warner Avenue, and enter a yellowy beige XB Falcon, which was then driven off. Mr Kiriona, he said, set off in pursuit of it.

16 Paul Steengraver, who was also inside the premises, and whose dog announced the arrival of the invaders by barking, said that he saw three men “flying through” the front door after it had been opened by Cooper and David Brown. They were dressed in black with balaclavas and dark gloves. He described one man, who was armed with a revolver, as about 6 feet tall, weighing 75 to 80 Kgs, and dressed in black. The second man, who was carrying a baseball bat, he said was about 5 foot 11 inches, slim, and had a black top with a heavy metal band logo. The third man, who was carrying a shotgun, he said, was about 5 foot 9 inches, weighing 80 to 85 Kgs, and wearing a black top and sandshoes. These men repeatedly demanded “where’s the fucking money?”.

17 The man with the shotgun, he said, struck him on the head, knocking him to the floor and opening a cut in his head. This man then pointed the weapon at his knees, saying : “Where is my twenty grand, cunt? Otherwise you will never walk again.” He next placed the gun at his buttocks, repeating his demand for the money.

18 Steengraver said that if there was any money in the house, then it was likely to be in the bedroom. He was escorted to that room, with Annette Williams, where they frantically searched for money. None was found and the man with the shotgun then placed it in his (Steengraver’s) mouth, after which he and Ms Williams were taken from the room. Following a distraction in the other bedroom, he was able to escape and to run to the Wyong police station, which was 800 to 900 metres away.

19 Ms Williams said that, upon hearing the commotion as the men arrived, she returned to Ms Coeradi’s bedroom. Eventually they were instructed to go into the lounge room and to lie on the floor. They were told that Brian Shearer owed the men $20,000, and that they would be killed if they were not given the money. She accompanied Steengraver to the main bedroom and joined in a search there for money. She saw him being struck by a man with a bat. She was then taken back to the other bedroom, where she was joined by Ms Coeradi and King. While they were there, one of the offenders said “What will we do with these?”, to which the reply was “shoot ‘em”. The men then said before leaving that they would be back in the morning.

(c) The Departure and Pursuit of the Offenders

20 Petal Andrews, who had been driving along Warner Avenue, heard a male voice say “Go, Go, Go”, after which she saw three men in black clothes and wearing balaclavas, run up the street and get into a golden or dark yellow sedan which then took off in the direction of the railway station. Timothy Burchan, who lived nearby, saw a brown gold Ford Falcon drive away from Warner Avenue. There was another vehicle following in apparent pursuit.

21 Jody Kiriona confirmed arriving in Levitt Street, where he lived, after midnight. He said that he heard yelling and screaming for help, and was asked for help by Brown, who said that there were men in the house with balaclavas and guns. He took up a Samoan cricket bat from his garage and went to the front porch of number 4 Levitt Street. Through a window he saw a man inside with a gun. The man came out, pointed the gun at him and asked, “if you want a piece of this?” whereupon he retreated.

22 From behind the wall of a block of units across the street, he saw three men run from the house and get into an orangey-brown Ford Sedan, which had been parked in Warner Avenue, and which had another person sitting in the driver’s seat. It drove off, and he pursued it in his own vehicle. He caught up with it on the Pacific Highway at San Remo. He saw three men alight, two from the back seat, and one from the front passenger seat. They ran into the adjoining bushland.

23 Kiriona stopped his vehicle, and after a scuffle, in the course of which he seized a baseball bat from the Ford, he managed to restrain the driver, who, it is common ground, was the appellant Powick. The driver, who was dressed in black, said to him “Look man, I’m just the driver, and it’s got nothing to do with me”. He also indicated, however, that he had expected to get something out of the enterprise.

24 Shortly afterwards, Kiriona noticed another man on the side of the highway, who asked, “What’s going on?” and who then asked for a light. This man, Kiriona described as having shoulder length sandy brown hair, 25 to 30 years old, five feet eight or nine inches tall, wearing a black Metallica T-shirt. He seemed to be sweating. Kiriona instructed him to get back to the other side of the road, to which he replied, “Yeah, man, I don’t want any trouble.” He explained that he had been partying all night, and was heading back to Newcastle. He had, however, approached the vehicle from the wrong direction, if it had been his intention to return to that city.

25 Kiriona flagged down a taxi, and asked its driver to call the police. The man got into it, and the taxi then drove off. However it stopped after travelling about 200 metres, at which point the man got out.

26 Warren Cook, the taxi driver who had been flagged down by Kiriona, confirmed that he had phoned the 000 number, and that another man had entered his cab and asked to be taken to Toronto. However, he was let out 200 metres down the road, when he admitted to not having any money. He then saw him walk down Goorama Avenue towards San Remo. He described the man as being about 5 foot 9 inches to 6 feet tall, of slim build, with a beard and dark clothing.

27 Senior Sergeant William Erickson drove to the location where it had been reported that Mr Kiriona had stopped a vehicle. He made a cursory inspection of that vehicle, registration NUR 593, and of the adjoining area. A folding knife was found in the bush land, about 30 metres from the road (Exhibit BU). A $10 bank note was also found in the bushland.

28 Senior Constable Irons, of the State Protection Group, Dog Unit, gave evidence in relation to the finding of this knife. It followed a search by police dog Laser of the Levitt Street premises, after which the dog had been taken to the vehicle on the Pacific Highway. Once there, the dog picked up a scent, and followed it to the location where the knife was found. In relation to this evidence, his Honour later gave a direction in accordance with Benecke v R (1999) 106 A Crim R 282.

29 Constable Mark Walsh, who responded to the 000 call, arrived at the Pacific Highway, where Mr Kiriona was detaining Powick, at about 1.25 am. He made a cursory inspection of the Ford Falcon NUR 593 and its contents and asked Powick what had happened. The reply given was “I don’t know, I was only the driver. I didn’t know what they were going to do.” Powick was arrested and later taken to Wyong Police Station. He was wearing a Metallica T-shirt with “a master of puppets” banner, and a very different picture.

30 Detective Sergeant (now Inspector) Phillip Wrice, who became the officer in charge of the investigation, and who had initially attended the crime scene at about 1.30 am, went out to the location where Powick was detained. He said that he spoke to him at the Entrance Police Station, and that Powick agreed to provide blood and hair samples. On 7 October 1998, after speaking to him about the vehicle NUR 593, he conducted two electronically recorded interviews at Sutherland Police Station with Powick (Exhibits BG and BH) and prepared a statement for him to sign.

31 David Kinealy said that as he drove along Goorama Avenue, he was flagged down by a man, who was about five foot ten inches tall, of slight to medium build, with brown hair and dark clothing, and who asked where there was a telephone so that he could call for a taxi.

32 Kylee Ann Moss, who lived in Scribbly Gum Place, San Remo, said that between 1.00 and 1.30 am on 3 October 1998, she heard a knock at her front door. A man at the door asked if he could use the telephone to call an ambulance, as there had been an accident. He left when her husband said that he would make the call. The man, she said, was about five feet eight inches tall, of small to medium build, with fair hair and tattoos on his upper arm.

33 Malcolm Arvidson, who lived in Kallaroo Road, San Remo, said that he had been awoken by his wife, at about 1.30 am, who had said that she had heard someone coming up the stairs. He heard a conversation and noticed that the sensor light was on. The doorbell rang and he answered it. He saw a man standing outside, who was about five foot ten inches in height, of slim build, with dark hair and dark clothing. The man said that he had been involved in a slight accident and asked Mr Arvidson to call for a taxi or his parents. He gave his name as “Baz”, and said that his parents were Barbara and Warren Yates, and that their phone number was 49 43 8562, which Mr Arvidson recorded on a whiteboard. Mr Yates Senior answered the call to his home, and Mr Arvidson said that he had Baz on the veranda, needing a lift home. He then told the man at the front door to go back to the highway and wait for his lift.

34 He noted that, throughout the conversation, the exterior sensor light remained on, although it was programmed to turn off if someone remained on the veranda, that is, in the absence of any movement to reactivate it. He also recalled hearing a subdued conversation downstairs, suggesting that there was more than one person in the area.

35 Senior Constable Sutherland, who had been patrolling the Pacific Highway in order to stop vehicles turning from Link Road Lake onto the highway said that, at 3.10 am a motorist, who gave his name as Warren Yates, had stopped and asked him, “What was going on?” This man said that he had received a telephone call between 1.30 and 2.00 am asking him to pick up Barry Yates.

36 At about 3.30 am that morning Constable Walsh spoke to the appellant Yates on the corner of Goorama Road and Callen Avenue. He noticed an empty knife pouch on Yates’ belt and took possession of the pouch (Exhibit BE). Constable Hutchings corroborated the evidence which Constable Walsh gave. Yates gave as an explanation for having an empty pouch that the knife had been taken by police a couple of weeks earlier. In fact a knife had been taken from him by police, but that had occurred six weeks earlier, making it unlikely that Yates would have continued to carry an empty pouch on his belt. The knife (Exhibit BU) found in the bush was demonstrated to the jury by Mr Ross as fitting the pouch.

37 William Lusty, who was the owner and manager of a mixed business at San Remo, gave evidence of seeing a heavily tattooed man in his mid twenties, who was five and a half feet tall, of rough features, round face, with a solid build and short or shaven brown-blond hair and a little goatee or “bum fluffy bit” on his chin, walking towards him at about 6.30 am on 3 October. This man was wearing only shorts and seemed to have a number of cuts on his body, as well as an injury to his knee. He came into the shop, made some purchases and left, only to return a little while later. He asked Mr Lusty to call a cab to take him to Swansea. Upon phoning the taxi company Mr Lusty was informed, and told the man, that there would be a pre-set fare of $50 to $55.

38 Barry Riley, the taxi driver who responded to Mr Lusty’s call, arrived at the shop at about 7.15 am. His attention was directed to a man, who was wearing shorts, was heavily tattooed, and who was sitting in the park reading a newspaper. This man asked Mr Riley if he could be taken to Charlestown for $65. Mr Riley agreed, and later dropped him off at the Mattara Hotel which is very close to Arnold Street where the appellant Hyland was said to live. He described the passenger as being about 175 cms tall, with a small frame, sandy short hair and a goatee beard. He had a graze on his knee, tattoos on his arms, and a tattoo on his leg.

(d) Subsequent Investigations

39 There was evidence from Senior Constable Handley, who said that at 12.25 am on 3 October, Steengraver arrived at Wyong Police Station, announcing, “They’ve got sawn-off shotties and baseball bats and there’s hostages, and you’ve got to get down there and take them out before someone is shot.” She alerted other police to the incident, and while doing so she heard what appeared to be a single gunshot from a small calibre firearm.

40 Inspector Tamplin, who was also on duty, took initial control, set up a command post outside 4 Levitt Street, and organised for other Police to attend, before passing over command to Inspector Moseley at 6.15 am.

41 Detective Sergeant Hounslow, a crime scene officer, attended the premises at 2.30 am on 3 October. He noticed powder burning in the vicinity of the gunshot wound to Alan Brown, consistent with the muzzle of that weapon having been held in very close proximity to his skin.

42 Later that morning he took photographs of Yates (Exhibit O) and of Powick (Exhibit P), at Wyong and The Entrance Police Stations respectively. The scene at 4 Levitt Street was recorded by video (Exhibit Q) and a plan was made of the premises (Exhibit R).

43 Among the exhibits recovered from the premises were three pieces of blood stained glass from a broken panel in the front door, the top piece of a finger of a yellow latex glove, as well as swabs taken from the front and rear doors, and from a chest of drawers (Exhibits S to V and W). On 4 October, Detective Sergeant Hounslow examined a Ford Falcon sedan registration number NUR 593.

44 Photographs were taken of this vehicle and its contents (Exhibit AA). From the front passenger seat were removed a pair of latex surgical gloves, one of which was missing a piece of one finger, a black “Easton” brand baseball bat, a silver and green “Worth” brand baseball bat, a “Louisville Slugger” brand baseball bat, a black leather holster, a silver pocket knife, and two black balaclavas (Exhibits AB to AK). A glove of this kind was also found on the road beside the vehicle.

45 Subsequent examination of these articles by the Department of Analytical Laboratories showed that there was an identical match between the glove found in the vehicle and the finger tip of the glove taken from the premises. Additionally there was evidence from Detective Senior Constable Francine Poole, a crime scene examiner, that the fingertip piece found at 4 Levitt Street had once formed part of the glove with the missing finger piece found in vehicle NUR 593.

46 An Ericsson mobile phone was also found in the vehicle, and a smear of blood was found on the back of the front seat. The purchase records in connection with this phone showed that it had been acquired in the name of “Dean Harland” of 6-8 Arnold Street Carrington, the address of the parents of Hyland’s de facto partner. The date of birth of the purchaser was the same as that of Hyland.

47 Detective Senior Constable Gregory Owen supported Detective Sergeant Hounslow’s evidence in relation to the examination of vehicle NUR 593, and of its contents. He took further photographs (Exhibit CO). He dusted the vehicle and various items for fingerprints, and also attempted, although without success, to raise fingerprints of identifiable value from 4 Levitt Street, and from the knife and a $10 note found in the bushland near the Pacific Highway.

48 Subsequently fingerprints of Powick and of Yates were matched with prints found on the vehicle.

49 Detective Senior Constable Luke Wise, of the Forensic Ballistics Section, examined the body of the deceased Alan Brown on 3 October and was present during a post mortem examination carried out by Dr Thomas Oettle. He confirmed that the wound showed that the muzzle of the weapon had been in very close proximity to the deceased when discharged, and that the projectile taken from his body (Exhibit AP) was consistent with it having been fired from a weapon of .357 or .38 calibre.

50 Dr Oettle gave evidence to the effect that the deceased had died from a bullet wound behind the lower limit of the left ear, which was a contact wound. He noted other injuries to the head and body, which were consistent with the deceased having been subjected to a physical assault.

51 Senior Constable Ray Bailey said that on 21 December 1998, he participated in a search of drains and stormwater run-off areas at Blue Haven. About 50 metres south of Colorado Drive, he saw a pair of black tracksuit pants and a grey T-shirt. Another pair of tracksuit pants was located in bushland about 6 metres from the highway. These items were photographed in situ and taken into custody.

52 Blue Haven, it was established, is a suburb on the bushland side of the highway, in the vicinity of the area where vehicle NUR 593 was brought to a halt.

53 Joseph Sue gave evidence that, on 2 December 1998, he had found a shotgun (Exhibit CA) in a drain at Blue Haven, also near Colorado Drive. It was identified by Senior Constable Snow as a shortened, Italian manufactured, single barrel shotgun.

54 So far as the evidence shows, the firearm which was used to fire the fatal shot was not recovered or further identified. However, as appeared from a plan, Exhibit BB, the place where the vehicle was stopped, where the shotgun and clothing were found, where Mr Arvidson, Mr Ross, Mr Kinealy and Mr Lusty described seeing a man, were all in close proximity. As shown in the aerial photograph (Exhibit BS) the bushland was quite thick.

(e) Vehicle NUR 593

55 It was common ground that this vehicle was registered in the name of Darren Wall (Exhibit BK).

56 It became a central part of the investigation, having regard to its confirmed presence at the crime scene, its contents, and the movements both of it, and its occupants, subsequent to the offence. In this regard the evidence of Ms Russell, which occupied a good deal of attention during the trial, and in the course of this appeal, had a direct relevance. To the substance of her evidence, and to the various versions, which she has given, we will return, when we come to consider the various grounds of appeal, which related to it.

57 There was evidence from Brian Milsom, a police communications officer, to the effect that he took a 000 call at 2.44 pm on Sunday 4 October from Wall, advising that the vehicle had been stolen. Being aware of the alleged involvement of the vehicle in the murder, Mr Milsom advised Wall to go to the Charlestown Police Station to confirm the report, and to fill out the necessary paperwork. He complied with this request and he was spoken to by Detective Sergeant (Inspector) Wrice that day. An electronically recorded interview was carried out (Exhibit BL) and a statement (Exhibit BM) was taken, in the course of which he claimed that his car had been stolen from the premises of Peter Wall at Belmont North, where he had left it, preparatory to going camping with Ms Russell and friends.

58 Karen Sproule said that, on 3 October 1998, she spoke to Wall, in the company of her boyfriend Steven Lester, at his request, near the Charlestown Water Tower. She said that he indicated that he was in trouble, that this car had been used in a murder, and that he had lent it to a person called “Boot”. They offered to help him, and he suggested that they might go camping, and that he might report his car as having been stolen.

59 She said that following this she, Lester, Wall, Russell and their son went to Gloucester, arriving at the campsite during the night of 3 October and leaving the following morning. Wall, she said, made a phone call on the way back. He then directed her to the home of Yates, with whom he had a conversation. Upon his return to the car, he said to Lester, “You don’t know nothing.”

60 They then drove to Wall’s home where he went inside to report the vehicle as having been stolen. Ms Sproule said that she then drove Wall and Ms Russell to Charlestown Police Station and waited in the car with the latter, while Wall made a formal report.

61 When Detective Sergeant (Inspector) Wrice asked her to provide a statement she agreed to do so, but filled it out untruthfully, insofar as she said that they had gone to Gloucester on 2 October, rather than 3 October. Lester, she said, made a similar statement.

62 Various members of Ms Sproule’s family, who had also been at the campsite, all gave evidence that they had arrived there in the afternoon of 3 October, and that Wall, Ms Russell, Ms Sproule and Lester had arrived that night, after them, and had left on the following morning.

63 Two of the witnesses, namely Narelle McGuire, and Donald Sproule, acknowledged that they had earlier made statements in which they had said that they had gone camping on 2 October, but had later decided to tell the truth.

64 On 6 October, Detective Sergeant (Inspector) Wrice spoke to Powick at the Gosford Court complex in relation to the vehicle. Powick said that he had borrowed the vehicle from his friend Darren or “Wall-ey”, and that he had been in it with a man named Bob, and two other men, whom he had not previously met, and who were only known to him as “Cob” and “Fang”. He agreed that he knew Yates, but claimed not to have seen him for some time. On the following day he participated in the two electronically recorded interviews previously mentioned.

(f) DNA Testing

65 Evidence was given by Robert Goetz, Suzanne Briese, and Christine Gill in relation to the DNA testing (using the Profiler Plus system) of samples taken from the appellants and from items taken variously from their premises, the crime scene, and vehicle NUR 593. In summary this was reported as showing:

· neither the deceased nor Parry could be excluded as a source of DNA recovered from the piece of a finger of the glove found at the scene – the probability of a match by chance being calculated at 9300 to one;

· the balaclava found in the glove box of vehicle NUR 593 (Exhibit AD) was found to have DNA material of the same profile as Yates – the probability of a match by chance was calculated at 10 billion to one;

· DNA found on a balaclava taken from the floor of the car (Exhibit AG) had the same profile as Parry – the probability of a chance match being 620,000 to one;

· DNA recovered from a blood smear in vehicle NUR 593 and from the broken glass in the front door matched that of Hyland – the probability of a chance match was said to be 10 billion to one.

(h) Telephone calls

66 There was evidence from John Mackay of Telstra, Lindsay Alexander of Hutchinson Telecommunications Australia, and Marisa Wicks of Optus concerning some telephone calls which were made between 1 October and 3 October 1998, to the following effect:

· Calls were made from a phone in Powick’s name (494 554187) to a mobile in Wall’s name (0413 122347) on 1 October 1998 (at 12.40 pm), and on 2 October 1998 (at 4.31 pm and 6.06 pm); and

· 7 calls were made to the mobile in Wall’s name between 6.44 pm and 10.01 pm on 2 October, which went through the Belmont Omni tower, the first of which came from the phone in Powick’s name; and

· 2 calls were made from the mobile phone in Wall’s name at 12.54 am and 2.04 am on 3 October, to a mobile service in Yates’ name (although they were not answered).

67 The Crown relied on the evidence concerning the telephone calls from Powick on 2 October as being the summons from Powick to Wall to go out to 255 Pacific Highway Belmont North, the home of Paul Webb (the Sergeant at arms of the Boolaroo chapter of the Life and Death Motorcycle Club), that being the address where it was submitted that Ms Russell had seen vehicle NUR 593, Yates and Hyland, whom she had already known, and the man she heard referred to as “Blood”, whom she had not previously known. The phone of Powick was registered to this address.

68 It also relied on the 3 October calls as being consistent with Wall understanding that Yates was still using his car, and that he was concerned as to where it might be.

(i) The Arrests

Powick

69 As previously noted, he was arrested at about 1.30 am on 3 October on the Pacific Highway, near San Remo, where he had been detained by Mr Kiriona.

Yates

70 On 3 October 1998, he was taken by Detective Senior Constable Milton to The Entrance Police Station, where he participated in an electronically recorded interview, conducted by that officer and by Detective Senior Constable Dooley (Exhibit BW). After the interview he removed and handed over to Police the black Metallica T-shirt, which he had been wearing inside out, when seen by police and arrested in the San Remo area. He agreed to provide a blood sample for analysis. In the course of his interview he acknowledged having driven over to Paul Webb’s house at North Belmont on the afternoon of 2 October, from which address the Crown asserted the group had set off in Wall’s motor vehicle.

Hyland

71 Detective Senior Constable Burns gave evidence to the effect that Hyland was arrested on 2 March 1999 in relation to another matter. In the course of executing a search warrant at his premises, a number of items were taken into possession by police, including a wallet marked with the name “Deano”, and clothing bearing the words “Life and Death Motorcycle Club”. He was seen to have an injury to his knee. A piece of toilet paper used to soak up blood on it was later given to Detective Nichols.

72 He was charged with the murder of Alan Brown on 10 June 1999. Although he declined to be interviewed, he consented to providing a blood sample. His knees were examined and seen to be scarred.

73 Detective Nichols, who corroborated this evidence, added that, during the search of Hyland’s premises, he took possession of cigarette butts, a toothbrush and a piece of bloodstained toilet paper.

Parry

74 Sergeant Anthony Ferguson said that on 2 March 1999, a search warrant was executed at Parry’s home, which was video recorded. In the course of it, police took possession of a self-rolled cigarette butt, a black balaclava, a pair of black gloves, and an “Easton” brand baseball bat.

75 Detective Constable Gerrard Powell, who assisted in the search, said that he observed Parry smoking the hand-rolled cigarette which was given to Sergeant Ferguson. He took possession of another butt from an ashtray.

76 Detective Sergeant Robert Allison arrested Parry on 10 June 1999. He agreed to provide a blood sample for analysis, although he declined to participate in an electronically recorded interview.

77 Detective Sergeant Vincent Lizdenis gave evidence that Parry participated voluntarily in an identification parade which was carried out, on 11 October 1999, and in the course of which Ms Russell identified him as one of the men who had got into vehicle NUR 593 on 2 October 1998, being the man whom she had heard being addressed as “Blood”. The identification parade was videotaped (Exhibit CE).

(j) Evidence concerning the Life and Death Motorcycle Club

78 Douglas Bates, a former member of the club, gave evidence that he knew Parry and Hyland as members, and said that their nicknames were “Blood” and “Deano”.

79 Peter Brown, who described himself as an associate of members of the club and former employee of its President, similarly said that the nicknames of Parry and Hyland were “Blood” and “Deano”. Powick he said was known as “Boots”.

80 He said that he had attended the 25th Anniversary party of the Club at Ebenezer over the long weekend of 3 to 5 October 1998. He said that, before leaving for Ebenezer, he had called into the Clubhouse at Boolaroo. He saw a taxi arrive and he saw “Blood” walk into the club house and have a private conversation with a few men, including the Sergeant at Arms of the Boolaroo Chapter, Paul Webb. “Deano”, he said, did not attend the anniversary party.

81 Ian Murray gave evidence that a vote was recorded in Parry’s name, at Carrington Polling Booth (St Thomas Anglican Hall) on Saturday 3 October 1998, in the Federal election held that day.

(k) The Defence

82 The evidence called by the defence was limited to five witnesses. None of the appellants gave evidence. The witnesses called included Professor Boettcher, who provided the usual and unexceptional explanation as to the limits of DNA evidence and as to the way in which probabilities as to a match should be understood.

83 Mr Yates Senior gave evidence to the effect that Wall had been a friend of his son and commonly travelled in his vehicle. He said that he had received a call from his son at about 12.20 or 12.25 am on 3 October 1998, rather than at around 1.30 am (as Mr Ardvidson had said).

84 Mark Morris, a dental surgeon, gave evidence of having examined Parry and of not finding any dental abnormality of the kind that had been attributed by one of the witnesses (Steengraver) to the offender who had the shotgun. However, it was never the Crown case that Parry had the shotgun; its case being that he had the handgun which fired the fatal shot.

85 Finally there was evidence from Anthony Salter and Peter Quinn in relation to the facility, available at the Boolaroo Life and Death Motorcycle Club clubhouse, for members and associates to borrow clothing, including jumpers, wet weather protection gear, beanies and balaclavas.

86 In relation to this aspect of the case, evidence had been led by the Crown to the effect that, when a search warrant was executed at the premises on 2 March 1999, no such items were found.

87 Before departing from the facts and turning to the multiple grounds of appeal which have been raised, we note that it was the Crown case that:

88 In relation to matching the offenders with the physical descriptions given by the witnesses of the persons who went inside the house, the Crown pointed to the photographs taken by police which showed that:

Don’t tread on me”

89 We turn next to those grounds of appeal which were pursued when the matter came on for hearing, noting that a number of the grounds which were originally filed were not pursued. Since many of the grounds were raised by more than one appellant, we will deal with them together.

DISCHARGE OF THE JURY

90 This ground was pursued by Yates alone and related to the circumstance that, approximately three and a half weeks into the trial, one of the jurors produced a medical certificate, and a report from a psychologist, stating that he was unable to continue as a juror, because the proceedings were affecting his mental health. The report suggested that he was suffering from paranoid delusions. This had followed upon an earlier incident in the trial, when one of the jurors had complained that a man, who seemed to be a supporter of the accused, had followed him part of the way home after Court, on the first day of the trial. Counsel was informed, but no application was made at that point.

91 An application was however made to the trial Judge, when the medical certificate was provided, to discharge not only the juror who was unwell, a course which had the agreement of all counsel, but also to discharge the entire jury.

92 This application was made by counsel for Hyland, and by counsel for Yates, and arose when his Honour gave separate consideration, as was required by the decision in Wu v The Queen (1999) 199 CLR 99, to whether the trial should continue with eleven jurors.

93 The reasons for the application were barely articulated, beyond the desire of the relevant appellants to be tried by a jury of twelve, and a submission, in very general terms, that “the nature of the medical injuries (sic) leads to a situation where it is now inappropriate for this jury to proceed any further in relation to dealing with my client [Yates]”. This application was dismissed by his Honour, for the reason that the trial was in its fifth week of hearing and the factual evidence had almost concluded.

94 It is now submitted that it was impossible to be certain, in the events which had transpired, that the jury’s deliberations were not carried out in a climate of suspicion towards the appellants. As we have observed, no such submission was made to his Honour, and we are unpersuaded that it has any attraction whatsoever in logic. The matter was one for a discretionary exercise of judgment by his Honour, and we are not persuaded that it miscarried. This ground has not been made good.

THE METALLICA T-SHIRT

95 Next, it was submitted, by Yates and Powick, that the evidence from Mr Harrison to the effect that the T-shirt, which was taken from Yates, was “similar to” the T-shirt worn by the man who had the baseball bat, was inadmissible.

96 The T-shirt which Yates was wearing (see Exhibits AQ and AR) had elbow length sleeves and was black. The front contained a Metallica logo, above a skeletal snake, and the words “Don’t tread on me”. It had a similar logo on the arm and writing on the back, beneath a snake skin like pattern which also included some teeth.

97 The description, which Mr Harrison had given to police on 29 October 1998, of the shirt worn by the man who had bashed him, was as follows:

He was wearing…a black coloured ‘Metallica’ short sleeved shirt. On the front of the shirt there was a picture of a snake running through a skull in the middle of the shirt. There was a banner half way down the skull with the words ‘DON’T TREAD ON ME’, this was about 9 centimetres long and 1.5 to 2 centimetres high.

The snake curled down through the eye and curled at the bottom and curled out again at the top

The shirt was worn faded, washed heaps, the picture started to fade. He also had another shirt under this which was black too with long sleeves.”

98 On 6 November 1998, Mr Harrison was shown Yates’ T-shirt (Exhibit AR) by police. No other shirts were shown to him. Mr Harrison said that it was ‘similar’ to the one worn by the man who had attacked him with a baseball bat.

99 It was put to him in cross-examination that in trying to describe the T-shirt now, it was difficult to differentiate between the shirt which the offender had worn, and the shirt which he had seen at the police station. He replied:

Well, you go and find me a Metallica T-shirt with a more similar design on it than the one I described. There’s – I guarantee you, there’s no Metallica shirt that’s got a similar design to that.”

100 Objection was taken to Mr Harrison’s evidence upon the basis that counsel could not properly cross-examine him as to his “real memory” of the shirt because of the contamination, or displacement effect, which followed upon police showing him the shirt which became Exhibit AR. It was also contended that the description, which Mr Harrison had given in his statement, was significantly different from Exhibit AR in relation to the sleeve length, and in relation to the snake “running through a skull”.

101 It was next submitted that the evidence had been further contaminated by questions asked of Mr Harrison by police, as recorded in a transcript, made at the time of his attendance at the police station on 6 November, as follows:

THOMAS: In your statement that you made on the 29th of October you make mention of the, of the skull and I, when I typed your statement I was of the belief that you meant a human skull is that what you meant in your statement or was it the skull of this snake?

HARRISON: It was the skull of the snake.

THOMAS: Yes so that is what you remember that skull

HARRISON: That skull

THOMAS: Of the snake there on that particular shirt?

HARRISON: Yes”

102 Ireland AJ allowed the evidence to be given, ruling that cross-examination as to any discrepancies had not been impeded, and that the exchange with the police officer had been directed towards clarification rather than offering to the witness a possible explanation for any difference in his recollection concerning the skull.

103 It has long been recognised that there are difficulties in any “identification” procedure which involves showing a potential witness, for example, a single photograph of a suspect. As was explained in Alexander v The Queen (1981) 145 CLR 395, there is a danger that the witness will thereafter begin to identify the person depicted in the photograph as the offender. It is for that reason that a warning is normally required in such cases concerning not only the general danger attaching to identification but also a specific warning as to the possible displacement effect: R v Clout (1995) 41 NSWLR 312.

104 The present appeal was conducted upon the basis that the evidence of Mr Harrison should have been excluded in its entirety insofar as it related to the description which he gave of the T-shirt. No objection was taken to the adequacy of the summing up.

105 Had Mr Harrison not provided a description of the T-shirt shortly after the event, or had he done so only after sighting the shirt at the police station, there might have been some force in the objection to the tender of the evidence.

106 However, as was pointed out in R v Leroy [2000] NSWCCA 302:

Early descriptions are important because they enable the tribunal of fact to test the identification made with the description given shortly after the event, and defence counsel are able to cross-examine and address on, discrepancies which may appear.”

107 In our view, while it may theoretically have been possible to assemble a “line up” of T-shirts, what was critical in this case was the witness’s contemporary and earlier description of the colour of the shirt, of the Metallica logo, of the snake (which had a skeletal skull, and which curled at the top and bottom) and of the banner “Don’t tread on me”. In those circumstances, had an identification parade been arranged involving a variety of shirts, or even of black Metallica shirts (the one taken from Powick having had a “Master of Puppets” banner), Yates’ shirt would have stood out in a way which would have itself tainted the exercise.

108 The so called differences in detail appear to us to be utterly insignificant, and we see no error in his Honour’s conclusion that the exchange between Mr Harrison and the police officer was properly understood as a clarification rather than as an inappropriate suggestion.

109 We are satisfied that counsel were able to cross-examine the witness on the discrepancies, and that there was no error in the admission of the evidence.

ELECTION OF APPELLANTS NOT TO GIVE EVIDENCE

110 It was submitted by Hyland and Powick that his Honour erred in the directions which were given concerning the fact that none of the appellants had given evidence in the trial. Initially, it was the position of all counsel, including the Crown Prosecutor, that no direction should be given in this respect. Later, however, the Crown Prosecutor submitted that a direction should be given along the lines of the draft which had earlier been prepared, and provided to counsel, in the event of there being a jury question on this topic. In making that submission, the Crown Prosecutor indicated that it was his belief that the decision of the High Court in RPS v The Queen (2000) 199 CLR 620 required this to be done so as to “protect the position of the accused.”

111 His Honour accepted that submission and directed the jury as follows:

None of the accused has given evidence in this trial, and there are a number of important directions which I must give you in relation to that.

An accused person may always give evidence in a trial, but there is no obligation upon him or her to do so. As I have already pointed out, the Crown bears the onus of satisfying beyond reasonable doubt that the accused in this trial are guilty of the offences charged. The accused bear no onus. Each accused is presumed to be innocent until you have been satisfied by the Crown in regard to each offence that he is guilty. Each accused is entitled to elect to say nothing, and require the Crown to prove its case against him.

Because each of the accused has merely exercised the right which belongs to every citizen, you must not draw any inference at all adverse to any of the accused by reason of the fact that each of them has elected not to give evidence.

There are many reasons why an accused may elect not to give evidence. An accused may fear that the [sic] will be confused by cross-examination; an accused may simply be content to rely upon any weaknesses which may be perceived to exist in the Crown case. There are no doubt other valid reasons.

You must not speculate why each of the accused has not given evidence. Furthermore, you must not treat the election by each accused not to give evidence as being capable of filling any gaps in the Crown case that you may perceive to exist.”

112 In our view there was nothing objectionable in this direction. It was entirely in accordance with the law, as declared three weeks later in Azzopardi v The Queen (2001) 205 CLR 50, where Gaudron, Gummow, Kirby and Hayne JJ said:

51. In the course of argument of the present matters it was suggested that if a judge said nothing to the jury about the fact that an accused had not given evidence the jury may use the accused's silence in court to his or her detriment. Plainly that is so. It follows that if an accused does not give evidence at trial it will almost always be desirable for the judge to warn the jury that the accused’s silence in court is not evidence against the accused, does not constitute an admission by the accused, may not be used to fill gaps in the evidence tendered by the prosecution, and may not be used as a make-weight in assessing whether the prosecution has proved its case beyond reasonable doubt…”

R v Richards

113 This ground is not made good.

LIES - POWICK

114 In a late submission, Powick sought leave to raise an additional ground of appeal, to the effect that his Honour erred in not giving a direction, in accordance with Edwards v The Queen (1993) 178 CLR 193, concerning the lies which the Crown alleged Powick had told in his ERISP.

115 The difficulty with this submission, however, is that in asserting that Powick had lied, the Crown did not seek to rely on that fact as an element of a circumstantial case, so far as it displayed a consciousness of guilt on his part. Rather, the Crown submitted that the account which he had given, by way of defence to each count, should not be believed. Moreover, it was necessary for the Crown to prove, beyond reasonable doubt, that Powick had lied, so far as that was an essential element of the accessory after the fact count.

116 Clearly, this was how the matter was viewed by trial counsel, in that an Edwards direction was not sought.

117 We refuse leave under Rule 4 to raise this ground.

PARRY DEFENCE CASE

118 This ground was pursued by Parry alone. In substance he submitted that evidence was available, and should have been led, to the effect that he had been at the 25th anniversary party of the Life and Death Motor Cycle Club at the time of the murder of Alan Brown; and that counsel should have called him to give evidence at his trial, both generally, and in relation to the alibi.

119 In support of this ground, various documents, including an affidavit sworn by Parry, and a statement taken from him by his counsel, were tendered. In summary, Parry said, in relation to his movements between 1 and 3 October 1998, that:

· On 1 October he left his home in Carrington at approximately 5.00 pm to travel to Kurrajong for the purpose of helping next day with the arrangements for the 25th anniversary of the Life and Death Motorcycle Club, arriving there between 7.30 pm and 8.00 pm;

· He stayed that night at the premises owned by Peter Leask;

· On 2 October he travelled, with Leask, to a mushroom farm in the Windsor area where the party was to be held;

· While there he saw various people whom he identified as “Spook”, “Johnny” and “Badger”, and helped set up the beer tent, the army tent and stage;

· He remained at the site overnight, drinking around a fire with various persons including someone whom he identified as “Shorty” from the Windsor Chapter, and with “Spook,” who was there until 11.00 pm;

· On 3 October 1998, he awoke at the site at 6.30 am to 7.00 am, and remained there all day, helping at the bar and barbeque spit;

· He remained there until Monday 5 October 1998;

· He understood that Gregory Hall, the nephew of his de facto wife, voted on his behalf at Carrington;

· A film company and reporters and photographers from a biker magazine were present at the site from about midday on 3 October;

· At the time of his first meeting with trial counsel he was informed by counsel, “I don’t want to know anything about the matter itself from you yet”;

· In the interviews which preceded the committal, counsel did not ask him any direct questions about his version of events;

· Three to four weeks before the trial he informed counsel that he had not been in the area when the murder happened, which led counsel to make some inquiries of other people (presumably those who might support an alibi);

· He obtained statements from various persons but could not locate anyone who had been with him at the time of the killing;

· When he took the statements to counsel, he was informed “We’re not running alibi, we’re using this for a back-up”;

· At the trial he had wanted to give evidence, but his counsel, whose advice had changed on this matter from time to time, said at the close of the Crown case, “I don’t think I’ll put you on the stand”. He took this advice.

120 A transcript of his examination before the Crime Commission was tendered, in the course of which he gave a similar account of his movements between Thursday and Monday, although in the course of his evidence he named a number of other persons whom he allegedly saw at the camp site, on 2 October, including ”Dr Bob” (Kitchener) from the Windsor chapter; “Pete” from the Gateshead chapter, “Steptoe” from the Boolaroo chapter; as well as various persons who had allegedly arrived on the following morning.

121 An affidavit was sworn by the legal clerk for the solicitor who acted for Parry, in which she deposed that:

· She had attended the various conferences, which were held pre trial;

· She had endeavoured to obtain evidence in support of Parry’s claimed alibi, including interviewing persons named by him, contacting biker magazines, and obtaining video footage of the anniversary party;

· She had been unable to obtain any material to support an alibi defence;

· On 8 February 2001, following discussions with counsel, Parry gave written and signed instructions not to pursue the alibi;

· Both before, and during, the trial, the merits and dangers of Parry giving evidence were discussed with him;

· At no stage did Parry say that he wished to give evidence;

· Counsel said, after explaining the dangers, that it was a matter for him to decide;

· Just prior to commencing the case for Parry the question of him giving evidence was specifically discussed, and he was asked to consider the position overnight.

· On the following morning, he said that he did not wish to give evidence.

122 She also gave evidence before us, in which she contradicted much of Parry’s account, and confirmed that the efforts which had been made to find witnesses who were able or prepared to support the alibi, had come to naught.

123 Two handwritten statements were tendered from Barry Evans and Peter Leask to the effect that they saw Parry during the weekend, but neither was specific or certain as to the times of such sightings.

124 Counsel who had appeared for the appellant at trial was called as a witness before us. He said that steps had been taken to research the claimed alibi, but that they came to nothing. He said that conferences had been held with various people nominated by Parry, that none of them could corroborate Parry, that he formed the view that none of them would have been credible witnesses, that he explained to Parry the risks of a false alibi, and that written instructions were obtained not to proceed with it. He also said that he had discussed with Parry the question of him giving evidence, explained the procedure to him and indicated that it was ultimately his decision. It was his understanding that Parry gave written instructions that he would not give evidence and that these instructions would be in the solicitor’s file.

125 He took into account, in relation to his discussions concerning calling Parry, his impression of the way in which he thought he might perform under cross-examination, it being his somewhat stark assessment that the “Crown Prosecutor would crucify him”. He also took into account the fact that none of the other accused was giving evidence, and the fact that he regarded the central issues in Parry’s case as being Ms Russell’s identification and the DNA evidence. In respect of each issue he thought the case had gone well.

126 It emerged in cross-examination that counsel who appeared for the appellant was an experienced trial counsel, who had formerly been a member of the Australian Federal Police. Counsel who appeared on the appeal accepted, in the course of his submissions to us, that trial counsel had conducted the cross-examination of the various witnesses in a competent and professional manner and confined his complaint, concerning his handling of the trial, to the two matters identified in this ground of appeal.

127 Evidence was placed before us from Parry’s de facto wife concerning her attempts to obtain the relevant papers from counsel and the former solicitors. Such documents as were obtained were searched, but did not include any instructions from Parry in relation to his giving evidence. She also said that the question of raising an alibi and of giving evidence had been considered at various times during the trial. As to the former, she said that counsel had indicated that he had made up his mind about the alibi about three weeks into the trial and again at the end. As to the latter, she said that toward the end of the trial counsel said that there was no need to call Parry.

128 Parry was cross-examined in the course of the appeal and agreed that despite his inquiry, he had found no evidence to support his alibi for the night of 2/3 October. He denied, however, giving his lawyers instructions not to rely upon an alibi, or signing the document to that effect which was in evidence. He also denied that any advice was given to him by counsel as to the risks of raising a false alibi. He also denied that he was given advice by counsel in relation to the various matters that would have been relevant to his election to give, or not to give, evidence, suggesting that “we didn’t really discuss it”.

129 It was submitted, on behalf of Parry, that trial counsel was negligent in not pursuing the alibi, and in not calling the appellant as a witness. Reliance was placed upon the decision in R v Birks (1990) 19 NSWLR 677 where Gleeson CJ, with whom McInerney J agreed, said, at 685:

The relevant principles, may be summarised as follows:

1. A Court of Criminal Appeal has a power and a duty to intervene in the case of a miscarriage of justice, but what amounts to a miscarriage of justice is something that has to be considered in the light of the way in which the system of criminal justice operates.

2. As a general rule an accused person is bound by the way the trial is conducted by counsel, regardless of whether that was in accordance with the wishes of the client, and it is not a ground for setting aside a conviction that decisions made by counsel were made without, or contrary to, instructions, or involve errors of judgment or even negligence.

3. However, there may arise cases where something has occurred in the running of a trial, perhaps as the result of ‘flagrant incompetence’ of counsel, or perhaps from some other cause, which will be recognised as involving, or causing, a miscarriage of justice. It is impossible, and undesirable, to attempt to define such cases with precision. When they arise they will attract appellate intervention.”

130 Subsequently in R v Ignjatic (1993) 68 A Crim R 333, Hunt CJ at CL observed, at 336:

Counsel have a wide discretion as to the manner in which proceedings are conducted. Decisions as to which witnesses should or should not be called, what questions should or should not be asked, which lines of argument should be pursued, which points should be abandoned and which of two or more inconsistent defences should be raised are all matters within the discretion of counsel, and they frequently involve difficult problems of judgment, including judgment as to the best tactics to be adopted. Neither disobedience of instructions nor even incompetence is sufficient of itself to attract appellate intervention. It is only when the error was made was of such a nature in the circumstances of the case as to have led to a miscarriage of justice that this Court will interfere.”

131 In our view, the ground is absolutely lacking in merit. This is not a case where serious incompetence or error of the kind referred to in these decisions or in TKWJ v The Queen [2002] HCA 46 was established. On the contrary, counsel for Mr Parry appears to us to have conducted the matter competently and with skill.

132 To have presented an “alibi defence”, Parry would necessarily have been called as a witness. He had no evidence whatsoever to support the alibi. Worse still, there was evidence from two witnesses placing him in the Newcastle district on the morning of 3 October. The dangers of a false alibi for the credibility of an accused are so well known, and so appreciated by trial counsel, as not to require elaboration.

133 The assessment of whether Parry would, or would not, have been a good witness, or would have been vulnerable to cross examination, was quintessentially a matter for trial counsel. We see no indication of misjudgment by counsel in this regard, or in the advice, which he gave to Parry, whose decision it ultimately was. Having seen and heard Parry give evidence before us, our assessment in this regard is only strengthened. He was far from impressive. We see no reason not to believe counsel wherever there is conflict between him and Parry, having regard in particular to the existence of written alibi instructions, and to the evidence of the legal clerk who had the carriage of the matter.

134 This ground is not made out.

DNA EVIDENCE

135 A number of grounds of appeal were initially raised in relation to the DNA evidence, by Parry, Hyland and Yates, being the appellants in respect of whom such evidence was led.

136 The grounds of appeal, as filed, were as follows:

Parry

That his Honour erred in:

(i) admitting into evidence the DNA analysis in respect of the finger piece of the glove found at Levitt Street;
(ii) failing to direct the jury that, in considering the DNA concerning the finger piece, the analysis was based upon an unproven assumption that the blood had come from only two sources;
(iii) directing the jury upon the assumption that the blood of the deceased was on the finger piece and that the DNA originated from only two individuals, that the result was that it was 9,300 times more likely to have originated from Brown and the appellant than from Brown and an unrelated individual;
(iv) directing the jury that the DNA profile derived from the balaclava “ covered a range of one in 390,000 to one in 970,000” ;
(v) the direction given to the jury as to the use to which the DNA evidence could be put.

137 However, when the matter came on for hearing before us, none of these grounds was pressed.

Yates

138 A single ground was initially advanced in the very general terms that his Honour failed to adequately or properly direct the jury, in regard to the effect and unreliability of the DNA evidence.

139 An additional ground was later foreshadowed to the effect that the analyst’s certificate should not have been admitted since exhibit continuity had not been established.

140 However, like Parry, when the appeal came on for hearing before us, these grounds were not pursued.

Hyland

141 The ground of appeal relied upon by this appellant was in similarly general terms to that raised by Yates, although as developed, it embraced the proposition that:

(i) His Honour had given little regard, and no emphasis in the summing up, to the fact that the statistical figure expressed by the expert was “ a mathematical calculation based on a hypothetical population and did not mention at all any of the issues of random breeding, unrelated populations or the absence of any such group from this world”;

142 Hyland alone pursued the DNA question when the appeal came on for hearing. However, since his submission needs to be considered in the context of the summing up as a whole, we shall refer to what it was that his Honour said to the jury, of immediate relevance to this aspect of the case.

143 His Honour first dealt with DNA evidence in relation to Yates, at which point he gave a general direction concerning its effect as follows:

Members of the jury, it may be helpful if I give you my understanding of what the DNA profile, or as it sometimes referred to, the DNA fingerprinting, establishes and does not establish on the evidence given in this case, recognising of course that what you make of this evidence is a matter for you.

The DNA profile of an individual relies upon identifying certain sequences referred to as short tandem repeats in the chain of DNA which is found in the cells of a living creature.

In persons who are identical twins, this profile or DNA fingerprint is the same, that is to say identical, because those twins came from the splitting of a single cell, that is to say they share the same DNA profile.

As between the rest of the community, the chain of DNA is so complex and so long, even in a single cell, that the chance of two people having the same DNA profile is extremely remote.

Nevertheless, it is possible that by chance, no matter how remote that chance may be, that two people could have the same profile, and because of that chance, albeit extremely remote, the

DNA scientists cannot and do not say that the DNA found on the object found, for example, at a crime scene, is that of a particular person, because of that remote chance that by coincidence two people have the same DNA profile.

What they can calculate is the chance that there will be two people of the same profile in a hypothetical population based on a sample or database of 359 or so people.

The odds calculated against the coincidence of two people having the same DNA profile are not taken past the 10 billion to one against, by the laboratory where Mr Goetz and Ms Gill work, but Professor Boettcher says they can be as high as 100 billion to one against that coincidence.

So when the DNA scientists find a match, they say two things. One, the person in question cannot be excluded, and two, the chances of it being a coincidence are one in however many they calculated. That is what they have done in this case.

320 The Crown submitted that this version of events made no sense and should be rejected by the jury as being untrue.

321 In the light of the remaining evidence, and of our findings concerning the version given by Ms Russell, this ground of appeal lacks all merit. The circumstances relied upon by the Crown, in our view, established a very strong circumstantial case that Powick was party to a common enterprise to commit the home invasion offence; and that he became aware of the murder and thereafter gave assistance to the remaining appellants, after its occurrence. This case is one where the appellant clearly had the knowledge required for accessorial liability considered in R v Tevendale (1955) VLR 95 and R v Stone (1981) VR 737.

322 No jury, acting reasonably, could have been left with a reasonable doubt as to his guilt. In particular, it beggars belief to suggest, as Powick did, that there was a reasonable inference open that he had accompanied three men to Levitt Street, who had then gone into the premises dressed in dark clothing, balaclavas and carrying weapons, for the purpose only of purchasing $25 worth of pot. It is equally offensive to common sense to suggest that a reasonable inference was left open that he drove the men away from the scene, entirely ignorant of what had occurred.

Hyland

323 The Crown case, in relation to the murder and home invasion offences in relation to this appellant, depended upon the following bodies of evidence:

· Ms Russell’s evidence of seeing Hyland at Wall’s home when the vehicle NUR 593 was loaded with weapons, and of departing with them;

· Eyewitness evidence in relation to the general description of the man with the shotgun;

· Evidence that the offenders left the scene in vehicle NUR 593;

· Evidence to the effect that when the vehicle was stopped at San Remo, the occupants other than the driver escaped into the adjacent bush;

· Evidence of the discovery of a mobile phone in the vehicle, registered in a name which the jury were entitled to find was that of Hyland;

· Evidence concerning the observation of a man of strikingly similar appearance to Hyland, wearing only shorts, and on foot, early in the morning of 3 October, who had cuts to his body consistent with him making his way through the bush, and with a cut to his knee;

· The discovery of a shotgun and discarded clothing near the area where the car was stopped;

· DNA evidence in relation to the blood found on the broken glass door at Levitt Street, and on the rear of the passenger seat in vehicle NUR 593, being of the same profile as Hyland’s DNA profile;

· Evidence to the effect that the man seen at Mr Lusty’s shop at San Remo was taken by taxi to a location near Arnold Street, Charlestown.

324 Again, it would be the case that, if the DNA evidence or the evidence of Ms Russell were excluded, or shown to be inherently unreliable, then there would be much to say in support of this ground. However, for the reasons previously given, we are satisfied that the evidence was admissible, and was well capable of acceptance by the jury.

325 Once that conclusion is reached, then in the light of the remaining evidence identified above, we are satisfied that this is not a case where a jury ought to have entertained a reasonable doubt about Hyland’s guilt. On the contrary, there was a very strong case that he was one of the offenders who entered the house and who was later dropped off at San Remo.

Yates

326 Similar considerations apply to Yates, so far as he also sought to amend the grounds of appeal to rely upon a submission that the verdict was unreasonable. Apart from the DNA evidence, and Ms Russell’s evidence, which we have already dealt with, the Crown relied upon the following bodies of evidence:

· The evidence of his presence at Webb’s house when vehicle NUR 593 was loaded with weapons and driven from the premises carrying each of the appellants;

· Eyewitness evidence at the scene that the man with the baseball bat was wearing a Metallica T-shirt with a skeletal snake;

· Evidence concerning the observation by police of Yates some hours later, wearing a shirt of this description, albeit inside out;

· Evidence that the offenders left the scene in vehicle NUR 593 from which its occupants, other than Powick, decamped at San Remo;

· Kiriona’s evidence that while detaining Powick at San Remo a man approached him wearing clothes consistent with those worn by Yates;

· Observations of residents in the San Remo area of a man of a similar description to Yates;

· Evidence concerning the telephone call made on behalf of this man by a San Remo resident to the parents of Yates, at 1.30 am;

· The arrest of Yates at San Remo;

· Evidence to the effect that Yates had an empty knife pouch on his belt, and that a folding knife which fitted the pouch was found in bushland adjacent to the location where vehicle NUR 593 was stopped;

· Evidence to the effect that Yates’ fingerprints were found in vehicle NUR 593;

· DNA evidence concerning the balaclava found in the vehicle NUR 593, the profile of which matched that of Yates, (which was not challenged on appeal).

327 While there was a theoretical possibility that Yates’ fingerprints may have been found in the car as a result of him having been a passenger in it on another occasion, that was hardly a credible possibility in relation to the balaclava. Taken together, in the light of our conclusions concerning the DNA evidence and Ms Russell’s evidence, the Crown case against Yates was, in our view, overwhelming. We are satisfied that no jury could have entertained a reasonable doubt as to his guilt.

Parry

328 Parry advanced this ground solely by reference to the other grounds relating to the DNA evidence and Ms Russell’s evidence. It was not separately advanced by reference to the strength of the remaining bodies of evidence which, in his case, went to:

· Ms Russell’s evidence of the person with the name “Blood” leaving the Belmont North premises with the remaining appellants in vehicle NUR 593, into which weapons had been placed;

· The fact that he was addressed by the name “Blood”, and that this was his nickname;

· Ms Russell’s later identification of him in an identification parade;

· Evidence as to the sighting of a man generally fitting his description, with tattoos and a rat’s tail down his back, at a Wyong hotel;

· Evidence from eyewitnesses at Levitt Street, as to the description of the man with the handgun, having tattoos on his arms and a plait down his back;

· DNA evidence in relation to the finger section of the glove found at the scene, and the balaclava found in the glove box, the profile of which matched Parry’s profile (which was not challenged on appeal);

· The fact that the finger piece at the scene matched the missing piece of the glove found in the vehicle NUR 593;

· Evidence of the registration of a vote in Parry’s name at Carrington on 3 October;

· Evidence of Parry attending the Boolaroo chapter clubhouse at about midday on 3 October and engaging in a private conversation with the president and sergeant at arms of that chapter, and with the president of the Gateshead chapter.

329 Again, by reason of the combination of circumstances, the Crown case was unanswerable. Any suggestion that the DNA may have been found on the balaclava or piece of finger accidentally (for example, because plastic gloves were used in tattooing carried out at the club house, or that clothing such as balaclavas were available there for borrowing) was, at best, tenous, and not such as to weather its force.

330 Accordingly this ground fails, in relation to all appellants.

APPEALS AGAINST CONVICTIONS - CONCLUSION

331 For the foregoing reasons, we are not persuaded that any of the appeals against conviction were made good. Each appeal is dismissed.

APPLICATIONS FOR LEAVE TO APPEAL AGAINST SENTENCE

332 As was pointed out earlier Robert Parry, Barry Yates and Dean Hyland were each convicted of murder, an offence which attracts a maximum penalty of life imprisonment. Each of them was also convicted pursuant to s 111(3) of the Crimes Act of entering a dwelling house with intent to commit a felony in circumstances of special aggravation. The maximum penalty for that offence is 20 years’ imprisonment. The sentencing judge imposed the following individual sentences upon the various offenders.

333 Robert Parry was sentenced to a term of 26 years’ imprisonment with a non-parole period of 19 ½ years for his role in the murder. That sentence was ordered to commence on 23 January 2000 to accommodate periods which he had spent in custody prior to sentence. This offender, together with Barry Yates, had been on bail at the commencement of the trial but in each case bail was revoked at that time. Mr Parry’s head sentence will thus expire on 22 January 2026 and the non-parole period is due to expire on 22 July 2019. His Honour fixed a concurrent fixed term of 11 years’ imprisonment in respect of the charge brought pursuant to s 111(3) of the Crimes Act.

334 Dean Hyland was sentenced to 23 years’ imprisonment with a non-parole period of 17 years and 3 months for his role in the murder. That sentence was ordered to commence on 10 May 1999 (the date on which he went into custody) and will expire on 9 May 2022. The non-parole period is due to expire on 9 August 2016. Mr Hyland was also sentenced to a concurrent fixed term of 11 years’ imprisonment in respect of the charge brought pursuant to s 111(3) of the Crimes Act.

335 Barry Yates was sentenced to 20 years’ imprisonment with a non-parole period of 15 years for his role in the murder. As he had spent only a few days in custody prior to the start of the trial his sentence was ordered to commence on 21 January 2001. That sentence will expire on 20 January 2021 and the non-parole period is due to expire on 20 January 2016. In respect of the s 111(3) matter, a concurrent fixed term of 10 years’ imprisonment was imposed.

336 Bradley Powick was sentenced to 10 years’ imprisonment with a non-parole period of 6½ years in respect of his conviction for the s 111(3) offence. That sentence was to be served cumulatively upon a sentence which this offender was serving in respect of an unrelated robbery offence. It was accordingly ordered to commence on 10 May 2002 and to expire on 9 May 2012 with a non-parole period which is due to expire on 9 November 2008. He was also sentenced to a concurrent fixed term of 3 years’ imprisonment in respect of his conviction for being an accessory after the fact to murder.

337 Barry Yates made no application for leave to appeal against the sentences imposed upon him. Robert Parry and Dean Hyland each sought leave as did Bradley Powick. He sought leave both in respect of the matters upon which he was sentenced by Ireland AJ and in relation to the robbery matter.

338 Upon the question of how the offence ought to be characterised the Crown submitted to his Honour that:

..the murder of Alan Brown, accompanied as it was by a high degree of cold blooded callousness, is fairly to be described as an atrocious and gravely wicked act in which the degree of brutality exhibited by all three offenders in the execution of an innocent man out of vengeance when they did not get their own way, falls within the worst category of cases.”

339 In evaluating that submission the sentencing judge had regard to s 61 of the Crimes (Sentencing Procedure) Act 1999, which relevantly provides:

(1) A court is to impose a sentence of imprisonment for life on a person who is convicted of murder if the court is satisfied that the level of culpability in the commission of the offence is so extreme that the community interest in retribution, punishment, community protection and deterrence can only be met through the imposition of that sentence.

(2) …

(3) Nothing in subsection (1) affects section 21(1).”

340 Section 21(1) is in the following terms:

If by any provision of an Act an offender is made liable to imprisonment for life, a court may nevertheless impose a sentence of imprisonment for a specified term.”

341 His Honour nevertheless decided to impose determinate sentences in respect of each offender. His Honour said:

The brutal and callous execution style killing of the victim, aggravated by the beating with a baseball bat to which he was subjected, and the further aggravating features of the home invasion with assaults, ill treatment and terrorising of the occupants, including the throwing of the victim Alan Brown against the sitting room wall from the couch where he was seated, amounts to a vicious killing unmitigated by any suggestion of provocation, self defence or other extenuating circumstances, and in my view justifies the categorization of this murder.

Having said that, I am nevertheless not persuaded that in the terms of s.61(1) the level of culpability in the commission of the offence is so extreme that the community interest in retribution, punishment, community protection and deterrence can only be met through the imposition of the maximum sentence.”

342 His Honour, having considered the respective subjective cases advanced on behalf of each of the offenders and having decided that there were no “special circumstances” in respect of Parry, Hyland and Yates, proceeded to impose the sentences earlier referred to.

343 It is now necessary to give separate consideration to the individual applications for leave which were made.

Parry

344 This applicant was aged 35 years at the time of the offences. He had two children from a relationship which had come to an end. He was at the time of sentence in a relationship with a Ms Murrell who gave evidence that they were engaged to be married. There was evidence that the applicant had worked on an intermittent basis in manual labouring jobs. There was also evidence that he had conducted himself well whilst in custody.

345 Nevertheless the applicant had an extensive criminal history dating back to 1982 when he had been convicted of assault occasioning actual bodily harm. Since then he had been convicted on four further occasions of either assault or assault occasioning actual bodily harm and he had been twice imprisoned for such offences. In 1995 he had been sentenced to two years’ imprisonment, comprising a minimum term of 18 months and an additional term of 6 months for malicious injury. This offence arose out of his having stabbed his stepbrother in the abdomen in what was an apparently unprovoked attack. The applicant had also served terms of imprisonment for conspiracy to supply a prohibited drug, entering a building with intent, breach of recognisance, driving whilst disqualified, and resisting arrest. There were various other convictions for driving offences and drug offences which had not resulted in sentences of imprisonment.

346 His Honour observed that the applicant had shown no contrition or remorse for his actions. His Honour continued:

“On the contrary, the offender’s callous disregard for the consequences of his acts is eloquently expressed in his seeking to profit from the killing by exhibiting the body of the victim as a threat.”

347 The only reference in the written submissions filed on behalf of the applicant on the question of sentence is in these terms: “His Honour sentenced the appellant on the basis that he was the person carrying and using the pistol when there is no evidence of same.” When the Court inquired of Mr Conomos, who appeared for the applicant Parry, during the course of oral submissions if he was persevering with the severity appeal, he replied that he had instructions to do so but that he had nothing to add to what had already been submitted (presumably in writing). When pressed further he said that “I will make the bald submission…that 26 years was excessive in the circumstances.”

348 It is to be noted that no submissions were advanced during oral argument in support of the proposition that there was no evidence to the effect that the applicant had fired the fatal shot. Clearly it was a finding that was well open on the evidence. This was so notwithstanding the fact that the three intruders attempted to disguise their appearances, primarily by the wearing of balaclavas. Nevertheless the evidence revealed sufficient details about the individual offenders to enable a determination to be made as to the role played by each of them.

349 The three men were armed, respectively, with a handgun or revolver, a shortened shotgun and a baseball bat. Derryn King gave a description of the man with the handgun which included a reference to having a plait coming out the back of his balaclava which went half way down his back. This was a relatively unique distinguishing feature of the applicant Parry.

350 There was compelling evidence that the offender Yates carried the baseball bat. As we have earlier observed, Daniel Harrison was attacked outside the premises by the man who was carrying this implement. He gave a detailed description of a “Metallica” T-shirt, with a snake design and a “Don’t Tread on Me” caption upon it, which was worn by that person. Yates was wearing such a shirt (albeit inside out) when he was apprehended several hours later by police.

351 There was evidence from Peter Brown, which was not disputed, that Hyland wore his hair in a very short, almost shaved fashion, at the relevant time.

352 The submission, however faintly put, that the sentence imposed upon the applicant was manifestly excessive, must be rejected. As his Honour observed, this was a “brutal and callous execution style killing of the victim” which was aggravated by reason of the associated brutality which was inflicted upon the other victims of what was a most terrifying home invasion. As his Honour said, the wanton conduct exhibited by each of the offenders convicted of murder justified “the categorisation of this murder as being in the worst class of such cases”.

353 Notwithstanding that assessment of the matter, his Honour, as has been observed, decided to impose determinate sentences. In doing so his Honour extended as much leniency to the offenders as the circumstances permitted. About the only thing that could be said on behalf of the applicants is that there is no evidence to suggest that they entered the premises with a premeditated intention to kill any specific person who may have been there. That is not sufficient to show, in the circumstances of this case, that some sentence other than that imposed was warranted and should have been imposed: s 6(3) of the Criminal Appeal Act 1912.

Hyland

354 This applicant, who was aged 27 years at the time of the offence, had a criminal record dating back to 1989. Although he had accumulated a significant number of convictions, he had only once previously been imprisoned. That had occurred in 1995 when he was sentenced in the Local Court for a variety of matters which included breach of recognisance, breaches of community service orders, drug and driving offences, steal motor vehicle, goods in custody and carrying a cutting instrument.

355 The main argument advanced on behalf of this applicant was that he entertained a justifiable sense of grievance by reason of the sentences imposed upon his co-offenders, and in particular the sentences imposed upon Barry Yates. More particularly it was submitted that such sense of grievance was heightened when it was recalled that the sentencing judge had specifically found that the fatal shot had been fired by Parry, in the presence of Yates, at a time when the present applicant was not even in the room. It is to be observed at once that it was for the very reason that the present applicant had not fired the fatal shot that his Honour concluded that his degree of criminality had been somewhat reduced. That explained why his sentence was less severe than the one imposed upon Parry. There is of course no complaint in that regard.

356 The sentencing judge made the following findings in respect of the co-offender, Barry Yates:

In October 1999 the offender sustained a fracture of his seventh cervical vertebra in a motor cycle accident. He was hospitalised for four days and remained in a “halo jacket” spinal brace for three months. He still experiences pain for which he is prescribed Naprosyn.

Ms Kusch administered a number of tests which led her to conclude that the offender Yates’ intellectual functioning is in the lowest 8% of the general population, hence being a person who has more difficulty than the average in considering the consequences of his behaviour and may possibly be vulnerable to manipulation by others.

The offender’s criminal history dates back to 1982. Whilst there are a number of offences they do not include custodial sentences and are of little significance for present sentencing purposes. I note also the testimonials tendered in Exhibits (3D)1 and (3D)2.

I approach the task of sentencing in this case on the basis that the offender was a follower and not a leader, and that he is a person whose intellectual functioning is at a relatively low level. He will, at least in the early days of his incarceration, be disadvantaged in a number of ways by the after effects of his injury.”

357 Contained within that passage is the explanation as to why the sentencing judge differentiated between the present applicant and Barry Yates and as to why a less severe sentence was imposed upon the latter.

358 In Lowe v The Queen (1984) 154 CLR 606 Brennan J said:

The sentencing of co-offenders always requires a comparison of their conduct and antecedents. The imposition of comparable sentences upon co-offenders whose respective conduct and antecedents warrant disparate sentences is unjust. Similarly the imposition of disparate sentences upon co-offenders whose conduct and antecedents are comparable is unjust. A justified sense of unfair treatment is produced in either case. To facilitate the comparison of conduct and antecedents it is desirable that, where practicable, co-offenders be sentenced by the same judge at the same time

359 In those circumstances for his Honour to have imposed comparable sentences upon the applicant and Barry Yates would have been “unjust”. The present applicant’s submission in relation to the issue of parity must accordingly be rejected.

360 It is also to be remembered that the present applicant was a party to a joint criminal enterprise featuring acts of extreme violence, which culminated in the murder of Alan Brown. Although the present applicant was convicted of two separate offences and is to be sentenced accordingly, it is clear that he was involved in one episode of sustained criminality. The extent of his actual involvement in pursuing the joint criminal enterprise was made apparent in the Remarks on Sentence of Ireland AJ to which reference was made earlier.

361 We conclude that in all of the circumstances of this appalling criminal episode the fact that the present applicant was not in the room at the time that the fatal shot was fired was of little moment. This applicant has similarly failed to show that some sentence other than that imposed was warranted in law and should have been imposed.

Powick

362 As has been observed this applicant seeks leave in relation to the sentences imposed by Ireland AJ in relation to the charge brought pursuant to s 111(3), as well as in relation to a sentence imposed upon him for robbery, in respect of which he was serving a sentence at the time at which he came to be dealt with by Ireland AJ. It is appropriate to deal with that latter matter first.

(a)

The robbery offence

363 The applicant seeks an extension of time within which to apply for leave to appeal against the severity of a sentence imposed upon him by his Honour Judge Kirkham in the District Court at Gosford on 19 May 1999. The applicant adhered to a plea of guilty first entered in the Local Court to a charge of robbery contrary to s 94 of the Crimes Act 1900 which provides for a maximum penalty of 14 years’ imprisonment. His Honour imposed an overall sentence of five years’ imprisonment which comprised a minimum term of three years four months commencing on 10 March 1999 and expiring on 9 July 2002 and an additional term of one year and eight months commencing on 10 July 2002 and expiring on 9 March 2004. The applicant accordingly would have been eligible for release on parole in respect of this offence on 9 July 2002.

364 Judge Kirkham found the following facts for the purposes of sentencing the applicant:

About 6.30 pm on Tuesday, 9 March 1999, the prisoner attended the Caltex Service Station on Pacific Highway at Swansea. He entered the service station, walked to the counter and enquired of this victim, Luke Wolfenden, who was the console operator at the time, whether he could use his savings card to conduct an electronic transaction to withdraw some money. The prisoner attempted this transaction, however it was declined due to insufficient funds being in his account. The prisoner then said to Mr Wolfenden, “You’re lucky I don’t pull out my gun and ask for all of your money,” and then he walked from the service station.

After the declining of the transaction electronically, a receipt was printed which was retained by the victim. This receipt recorded the time, the date and the card number used during the transaction.

The prisoner returned to the service station a short time after where he spoke to a Mrs Ellakamp. She was on the driveway whilst refilling her car with petrol. The prisoner enquired whether she was driving towards Charlestown and she informed him that she was not. He then said to her, “You’ll be taking me to Charlestown, I’ve got to go there, I’ve got to go inside here and I’ve got a gun.”

The prisoner walked into the service station shop, approached the victim who was behind the counter and demanded that he give him all of the money. The victim refused to comply with this demand which resulted in the prisoner threatening to pull the victim across the counter and assaulting him. The victim still refused to comply with the demand and the prisoner informed the victim that he was in possession of a gun which was behind his back, down his belt. The prisoner threatened to take out the gun and shoot the victim in the head if he did not give him the money. Fearing for his safety, he opened the till and removed seven hundred and five dollars in various Australian bank notes which he passed across the counter to the prisoner. He took the money, put it in his rear jeans pocket and left the service station.

The alarm was activated and police attended the garage a short time later and during enquiries of the service station a security video tape was viewed which clearly showed the prisoner entering the service station on both occasions and talking to the victim.

The victim provided the receipt to police from the prisoner’s electronic transaction and enquiries resulted in the prisoner being identified through bank records.

Other enquiries conducted by the police indicated that the prisoner left the Swansea area in a taxi cab around 7.30 pm and he was driven to the Belmont North area where he got out. The taxi driver had been made aware of the robbery by some radio contact with his base. He alerted the police to the location where he had dropped off the prisoner but an extensive search failed to locate him at that stage.

Later in the evening of the 9 March, the prisoner attended an address at Natarbi Road, Jewells, where a Toyota Corolla coupe registered number MIH-513 was parked outside and advertised for sale. The prisoner bought it for two hundred dollars from a Mr McDougall and a handwritten receipt was provided.

Further police enquiries identified the prisoner as being responsible and he was arrested at 7.25 on 10 March. He declined to be interviewed by way of recorded interview electronically and denied having any knowledge or involvement in the offence.

The money has not been recovered.”

365 The sentencing judge said that “[a]pplying the principles in Henry & Others, it seems to me that the appropriate head sentence is one of five years penal servitude.” His Honour’s reference was of course to the then recently pronounced guideline judgment of this Court in R v Henry (1999) 46 NSWLR 346 in which the Court said that for an offence of armed robbery in which there were a number of identifiable features which are ordinarily to be found in such cases, a range of between four and five years for the full term would generally be appropriate.

366 The applicant submits that it was an error on his Honour’s part to have equated the offence with which he was charged, with the more serious offence of armed robbery with which Henry was concerned, and which carries a maximum penalty of 20 years’ imprisonment. The Crown in its written submissions appears to concede that error has been demonstrated. Indeed it drew the Court’s attention to the decision in R v Black [2001] NSWCCA 41 as support for the proposition that it was inappropriate to regard a sentence of four to five years’ imprisonment as a starting point for offences of robbery other than armed robbery. In our view the submission ought to be upheld.

367 It is necessary now to consider the application for an extension of time. As has been observed sentence was imposed on 19 May 1999. It was not until 22 June 2001 that the applicant sought an extension of time. The applicant swore an affidavit in which he sought to explain that lengthy period of delay. He said that he had wished to lodge an appeal but had been advised by counsel who appeared for him, both in this matter and in the trial before Ireland AJ, that there “was no need to lodge an appeal because if [he] was convicted in the subsequent…proceedings he expected that I would receive a concurrent sentence of greater length than the sentence I had just received.” Nevertheless, as has been observed, Ireland AJ subsequently imposed sentences upon the applicant for his role in the “home invasion” matters which were almost wholly cumulative upon the non parole period for the sentence which had been imposed in respect of the robbery offence. The applicant suggested, in essence, that he had decided not to seek leave to appeal against the severity of the robbery offence only because of the advice he had received from counsel, which he appeared to characterise as being, in the final analysis, as at least misconceived, if not misleading.

368 Section 10(3) of the Criminal Appeal Act 1912 (which was in operation at the relevant time) gives the Court a discretion to extend the time within which to file a notice of an application for leave to appeal. Even though the section confers an unfettered discretion upon the Court to extend the time it will not be granted as a matter of course. Indeed where there has been a considerable delay, “exceptional circumstances will be required before the appeal is permitted to proceed.” See R v Lawrence [1980] 1 NSWLR 122 at 148. A critical question which frequently arises for consideration in cases such as the present is whether or not there may have been a miscarriage of justice. See R v Young [1999] NSWCCA 275. If there is a concern of that nature then the requirement for demonstrating that exceptional circumstances exist will usually have been made out.

369 In the light of the error to which reference was earlier made, and the erroneous advice which had been given, it is our view that the applicant has demonstrated a proper basis upon which the time for leave to appeal should be extended. Furthermore it is our view that the Court should intervene and proceed to re-sentence the applicant. See s 6(3) of the Criminal Appeal Act 1912.

370 There can be no doubt that the matter in respect of which the applicant appeared for sentence in the District Court was a serious offence. Although no gun was used by him, there was a threat made by him on more than one occasion that he was in possession of a weapon, and that he was prepared to use it. The fear engendered by that threat would have been very real from the perspective of the victim. In addition it was, as his Honour said, “a significant aggravating factor” that the applicant committed this offence whilst on bail for the matters in respect of which he later appeared before Ireland AJ. See R v Richards [1981] 2 NSWLR 464.

371 Nevertheless there were a number of matters of a subjective nature upon which the applicant was entitled to rely. He was aged 20 years at the time of the offence and had only two minor previous convictions, for offensive language and failing to supply the name of the driver of a vehicle, for which he had been fined. There was evidence that he had been an industrious and conscientious employee until he had lost his job after a work related injury which had required surgery. He had thereafter been unable by reason of that incapacity to secure employment. He had pleaded guilty at an early stage of the proceedings and was entitled to a significant measure of leniency on that account alone. See R v Thomson & Houlton (2000) 49 NSWLR 383; R v Cameron (2002) 187 ALR 65. It may be noted that the guideline judgment in Henry upon which the sentencing judge relied was predicated upon a late plea of guilty. The material before us also demonstrates that he has been spending his time productively whilst in custody.

372 In our view, given all the circumstances, an appropriate sentence for this offence is imprisonment for a fixed term of three years to commence on 10 March 1999 and to expire on 9 March 2002. It is appropriate to impose a fixed term because of the fact that there are other sentences to be served which were imposed subsequently.

(b) S 111(3) offence

373 The sentencing judge said that it was common ground that the home invasion offence was the more serious of the two matters with which he was concerned. The accessorial offence arose solely from the applicant’s blatant attempts to mislead the police in his ERISP. His Honour having decided to accumulate the present sentences upon the pre-existing sentence for robbery said that “principles of totality mandate a reduction of the sentence now to be imposed in light of the accumulation of the sentences”. His Honour also made a finding that there were “special circumstances” within the meaning of s 44(2) of the Crimes (Sentencing Procedure) Act 1999 by reason of the applicant’s age, his family support, the fact that this was to be regarded as his first offence in point of time and his favourable prospects for rehabilitation.

374 In relation to this aspect of the matter, it was submitted on behalf of the present applicant that he entertained a justifiable sense of grievance by reason of the fact that he had received the same head sentence for this matter as had Yates, and only one year less than those imposed upon Hyland and Parry. It was submitted that there were a number of matters which distinguished his case from those presented by his co-offenders, the consequence of which ought to have been reflected in a more substantial differentiation between the respective sentences than was in fact made. The matters pointed to included the following:

(a) his somewhat lesser role in relation to the offence, being limited as it was to, his being the driver of the vehicle;

(b) his age (he being a number of years younger than his co-offenders);

(c) his status as a first offender as found by the sentencing judge, stood in stark contrast to the position of his co-offenders; and

375 Although the sentences imposed upon each of the co-offenders for the home invasion were fixed terms, and therefore do not bear direct comparison with the sentence imposed upon the applicant, we have come to the view that the applicant’s submission should nevertheless be upheld. It needs however to be made abundantly clear that the applicant’s role in this very serious crime was an important one. He drove three men to and from a home invasion in the knowledge that they were armed with highly dangerous weapons, which they were undoubtedly prepared to use. In the circumstances we have concluded that only a relatively modest reduction in the sentence imposed by Ireland AJ is called for. We find “special circumstances” for the reasons advanced by the sentencing judge. In order to properly reflect the principle of totality as enunciated in Pearce v The Queen (1998) 194 CLR 610, we take the view that the sentence for this offence should be served to some extent concurrently with the robbery offence.

376 It will be necessary, pursuant to s 59 of the Crimes (Sentencing Procedure) Act 1999, to adjust the commencement date of the subsequent sentences by reason of the decision to reduce the sentence imposed for the robbery offence. The subsequent sentences will commence on a date which will take account of the fact that the applicant had spent two months in custody prior to trial, which was solely referable to the present matters. This approach conforms with the conclusion at which the sentencing judge himself arrived. The fact of accumulation is properly to be taken into account as a special circumstance in setting the non parole period, so as to ensure an appropriate potential period of supervised release on parole when considered against the total period of continuous custody.

377 Accordingly, the orders of the Court will be:

Robert Parry
1. Appeal against conviction dismissed
2. Leave to appeal against sentence granted.
3. Appeal dismissed.

Dean Hyland
1. Appeal against conviction dismissed.
2. Leave to appeal against sentence granted.
3. Appeal dismissed.

Barry Yates
1. Appeal against conviction dismissed.

Bradley Powick

(i) Extension of time within which to apply for leave to appeal against sentence granted.

(iv) Sentence imposed in the District Court quashed. In lieu thereof the applicant is sentenced to imprisonment for a fixed term of three years, to commence on 10 March 1999 and to expire on 9 March 2002.

(iii) Sentences imposed in the Supreme Court quashed. In lieu thereof the applicant is sentenced, in relation to the s 111(3) offence, to imprisonment for nine years to commence on 10 January 2001 and to expire on 9 January 2010. A non-parole period of five years and six months is fixed, to commence on 10 January 2001 and to expire on 9 July 2006 at which time he will be eligible for release to parole. The sentence imposed in respect of the offence of accessory after the fact to murder, of a fixed term of 3 years, is confirmed however it is now to commence on 10 January 2001. It is to be served wholly concurrently with that for the s 111(3) offence.

**********

CITATION:	R v Yates, Parry, Hyland, Powick [2002] NSWCCA 520
FILE NUMBER(S):	CCA 60361/01; 60379/01; 60412/01; 60434/01; 60427/01
HEARING DATE(S):	25/3/02, 26/3/02, 26/8/02, 20/9/02, 19/12/02
JUDGMENT DATE:	20 December 2002
PARTIES :	Regina Barry James Yates Robert Owen Parry Dean Hyland Brad Powick
JUDGMENT OF:	Wood CJ at CL at 1; Hulme J at 1; Buddin J at 1

LOWER COURT JURISDICTION:	Supreme Court
LOWER COURT FILE NUMBER(S) :	70202/00; 70201/00; 70012/00; 70067/00
LOWER COURT JUDICIAL OFFICER :	Ireland AJ

COUNSEL :	R A Hulme (Crown) K G Horler QC with M Austin (Yates) J W Conomos (Parry) G J Sundstrom (Hyland) D G Dalton (Powick)
SOLICITORS:	S E O'Connor John Bettens & Co (Yates) Kevin Solari (Parry) Braye Cragg (Hyland) Greg Murray (Powick)
CATCHWORDS:	CRIMINAL LAW - appeal against conviction and sentence - murder conviction - Analysis of DNA evidence - witness evidence after lapse of time - identification evidence - Chamberlain direction - whether verdicts unreasonable and supported by the evidence.
LEGISLATION CITED:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Criminal Appeal Act 1912 Evidence Act 1995 Evidence (Audio and Visual Links) Act 1998
CASES CITED:	Adam v The Queen (2001) 207 CLR 96 Alexander v The Queen (1981) 145 CLR 395 Azzopardi v The Queen (2001) 205 CLR 50 Benecke v R (1999) 106 A Crim R 282 Domican v The Queen (1991-1992) 173 CLR 555 Edwards v The Queen (1993) 178 CLR 193 Festa v The Queen [2001] 185 ALR 394 Jones v The Queen (1998) 191 CLR 440 Lowe v The Queen (1984) 154 CLR 606 M v The Queen (1994) 181 CLR 487 Morris v The Queen (1987) 163 CLR 454 Mraz v The Queen (1955) 93 CLR 493 Papakosmas v The Queen (1999) 196 CLR 297 Pearce v The Queen (1998) 194 CLR 610 R v Barbaro & Rovere (2000) 112 A Crim R 551 R v Birks (1990) 19 NSWLR 677 R v Black [2001] NSWCCA 41 R v Clark [2001] NSWCCA 494 R v Clout (1995) 41 NSWLR 312 R v Coe [2002] NSWCCA 385 R v Cameron (2002) 187 ALR 65 R v Carusi (1997) 92 A Crim R 52 R v Clarke (1997) 97 A Crim R 414 R v Coe [2002] NSWCCA 385 at para 67 R v Doheny and Adams [1997] 1 Cr App R 369 R v Eldridge [2002] NSWCCA 205 R v Fowler [2000] NSWCCA 142 R v Galli [2001] NSWCCA 504 R v Gee [2000] NSWCCA 198 R v GK (2001) 53 NSWLR 317 R v Henry (1999) 46 NSWLR 346 R v Hogan [2001] NSWCCA 292 R v Ignjatic (1993) 68 A Crim R 333 R v Keir [2002] 2 NSWCCA 30 See R v Lawrence [1980] 1 NSWLR 122 at 148 R v Ian Van Le [2002] NSWCCA 186 R v Leroy [2000] NSWCCA 302 R v Lisoff [1999] NSWCCA 364 R v Moussa [2001] NSWCCA 427 R v Nguyen [2002] NSWCCA 342 R v Richards [2002] NSWCCA 38 R v Roberts [2001] NSWCCA 163 R v Rose [2002] NSWCCA 455 R v Singh-Bal (1997) 92 A Crim R 397 R v Stone (1981) VR 737 R v Tevendale (1955) VLR 95 R v To [2002] NSWCCA 247 R v Thomson & Houlton (2000) 49 NSWLR 383 R v Young [1999] NSWCCA 275 RPS v The Queen (2000) 199 CLR 620 Stanoevski v The Queen (2002) 202 CLR 115 State Rail Authority of New South Wales v Earthline Constructions Pty Limited (1999) 160 ALR 588 TKWJ v The Queen [2002] HCA 46 Wu v The Queen (1999) 199 CLR 99
DECISION:	Robert Parry:; 1.Appeal against conviction dismissed; 2.Leave to appeal against sentence granted.; 3.Appeal dismissed.; Dean Hyland:; 1.Appeal against conviction dismissed.; 2.Leave to appeal against sentence granted.; 3.Appeal dismissed.; Barry Yates:; 1.Appeal against conviction dismissed.; Bradley Powick:; 1.Appeal against conviction dismissed.; 2.The robbery matter:; (i) Extension of time within which to apply for leave to appeal against sentence granted.; (ii) Leave to appeal against sentence granted.; (iii) Appeal against sentence allowed.; (iv) Sentence imposed in the District Court quashed. In lieu thereof the applicant is sentenced to imprisonment for a fixed term of three years, to commence on 10 March 1999 and to expire on 9 March 2002.; 3. The s 111(3) offence and the accessory after the fact offence: ; (i) Leave to appeal against sentence granted.; (ii) Appeal against sentence allowed.; (iii) Sentences imposed in the Supreme Court quashed. In lieu thereof the applicant is sentenced, in relation to the s 111(3) offence, to imprisonment for nine years to commence on 10 January 2001 and to expire on 9 January 2010. A non-parole period of five years and six months is fixed, to commence on 10 January 2001 and to expire on 9 July 2006 at which time he will be eligible for release to parole. The sentence imposed in respect of the offence of accessory after the fact to murder, of a fixed term of 3 years, is confirmed however it is now to commence on 10 January 2001. It is to be served wholly concurrently with that for the s 111(3) offence.