R v Elrington

LEGISLATION CITED: Crimes Act 1900 ss.94, 105A, 112 Evidence Act 1995 ss.65, 83, 137 and dictionary cl.4(1).

Island Maritime Limited v. Filipowski [2006] HCA 30 Jones v. The Queen (1997) 191 CLR 439 M v. The Queen (1994) 181 CLR 487 CASES CITED: Pearce v. The Queen [1998] HCA 57, (1998) 194 CLR 610 R v Elrington (1861) 1 B & S 688, 121 ER 870 R v. Beedie [1997] 2 Cr App R 167, [1998] QB 356 R v. Stone [2005] NSWCCA 344

Peter Taber - appellant PARTIES: Ian Styman - appellant Regina - respondent

Mr. G.D. Wendler with Mr. J.A. Dalzell for Taber COUNSEL: Mr. A.W. Street SC with Mr. D.C. Price for Styman Mr. D. Arnott SC with Ms. A. Mitchelmore for Crown

SOLICITORS: Van Houten Solicitors for both appellants S. Kavanagh, Solicitor for Public Prosecutions, for Crown

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S): SC 2002/118; SC 2002/120

LOWER COURT DATE OF DECISION: 15 December 2005

LOWER COURT MEDIUM NEUTRAL CITATION: [2005] NSWSC 1292

IN THE COURT OF CRIMINAL APPEAL CCAP 2006/1961 CCAP 2006/1990 SC 2002/118 SC 2002/120

HODGSON J A HOWIE J PRICE J

Thursday 26 April 2007 Peter TABER V. REGINA Ian STYMAN v. REGINA Judgment 1 HODGSON JA: On 19 September 2005, the appellants were arraigned before Studdert J on a charge that they between 5 January and 19 January 2001 at Greenwell Point in the State of New South Wales did feloniously slay Joy Golbie Achin. Both appellants pleaded not guilty and were tried before Studdert J and a jury. On 2 November 2005, both appellants were found guilty of manslaughter. 2 On 15 December 2005, Studdert J sentenced both appellants for two offences, one being an offence of breaking and entering a dwelling house and committing therein a serious indictable offence in circumstances of aggravation (which I will call aggravated break and enter) of which they had previously been found guilty, and the other being the offence of manslaughter. In each case, for the aggravated break and enter the trial judge imposed a sentence of imprisonment for 10 years from 26 March 2001, and declined to set a non-parole period; and for manslaughter, the trial judge imposed a sentence of imprisonment for 18 years from 26 March 2002, and set a non-parole period of 13 years 6 months to commence on 26 March 2002. He specified 25 September 2015 as the first date on which each was to become eligible to be released on parole. 3 The appellants appeal from their conviction for manslaughter, and seek leave to appeal from their sentence.

CIRCUMSTANCES 4 The Crown case was that the appellants, together with Shannon Styman (Ian Styman's nephew), broke into the deceased's house in Spies Avenue, Greenwell Point in the early hours of 7 January 2001, bound and gagged her, took cash from the house and then left her. At 4.52am that morning, Ian Styman made a 000 emergency call from a public telephone booth, requesting that a police car be sent to Spies Avenue, Greenwell Point because "there was a couple of blokes that went in with guns". The call was not responded to, and as a consequence the deceased was not rescued and she died, probably between 16 and 18 January 2001. Her body was discovered on 19 January 2001. 5 In September 2002, the appellants and Shannon Styman were indicted on charges of murder of the deceased, aggravated break and enter and other charges. Shannon Styman pleaded guilty to aggravated break and enter, and otherwise the appellants and Shannon Styman pleaded not guilty to all charges. After a trial before Barr J and a jury, on 11 December 2002 the appellants were found guilty of murder and aggravated break and enter, Shannon Styman was found guilty of manslaughter, and there was a not guilty verdict on the other charges. 6 Barr J sentenced Shannon Styman to 8 years' imprisonment for aggravated break and enter, and 14 years' imprisonment for manslaughter. He did not appeal. 7 Barr J sentenced each of the present appellants to life imprisonment for murder. Each of them did appeal, and the Court of Criminal Appeal upheld their appeals in relation to the conviction for murder, and that conviction was quashed. The conviction for aggravated break and enter was upheld, but the sentences imposed for it were set aside. The Court of Criminal Appeal also ordered that there be a new trial of the appellants on the charge of manslaughter. 8 It was pursuant to that order that the appellants were tried before Studdert J.

GROUNDS OF APPEAL 9 The appellant Taber relies on the following grounds: 1. That the Trial Judge erred in law by holding that the Appellants/Applicants did not have available to them a plea in bar in the respect of the offence pleaded in the indictment; alternatively any further proceedings upon the indictment should not be permanently stayed by reason of an abuse of process; 2. That in all circumstances the verdict of the Jury on the count of manslaughter should be set aside because it was unreasonable; 3. That there has been a miscarriage of justice by reason of the Trial Judge ruling, over objection, that evidence of the prosecution witness Shannon Styman, given in a previous trial, be read to the Jury as evidence in the prosecution case; 4. That in all circumstances the sentence imposed upon the Applicant is manifestly excessive; 5. That the Sentencing Judge failed to have sufficient regard to the fact that the Applicants were party to and encouraged the 000 rescue call, the sole purpose being to effect the rescue of the deceased; 6. That the Sentencing Judge erred by declining to find special circumstances. 7. That the Sentencing Judge erred by failing to order that the sentences be wholly concurrent. 10 The appellant Styman relies on the following grounds: 1. The learned trial judge erred in law in holding that the appellant was not entitled to rely upon a plea in bar to the indictment for manslaughter in circumstances where the act, as an element of the offence, relied upon to establish manslaughter being the act of deprivation of liberty was the same act or an act included in, as an element of the offence, the earlier conviction of the appellant for break and enter and commit a serious indictable offence; 2. The learned trial judge erred in law by failing to hold that the indictment for manslaughter was a more aggravated form of offence for which the appellant had already been dealt with in the earlier conviction of break and enter into the dwelling house of Mrs Alchin and commit there a serious offence, namely that while in the company of Peter Taber and Shannon Styman he robbed Mrs Alchin of her money and at the same time deprived her of her liberty and in the circumstances barred in merger by autrefois convict; 3. The learned trial judge erred in law in holding that section 65 (3) had application to previous representations by the co- accused Shannon Styman and/or to previous representations by the co-accused Shannon Styman which co-accused which constitute admissions without the consent of the appellant under section 80 (3); 4. The learned trial judge erred in law in determining whether the probative value of the evidence of the previous representation of Shannon Styman were outweighed by the danger of unfair prejudice within section 137 by: (i) taking into account an irrelevant consideration being the conviction for break and enter; (ii) taking into account an irrelevant consideration being the strength of the circumstantial case of the Crown; (iii) failing to take into account as unfair prejudice being the advantage of the Crown not having to comply with section 37(1) and having cross examined Shannon Styman involving leading questions within the meaning of the Evidence Act; (iv) failing to take into account the unfair prejudice as to the risk of improper use of the leading questions framed by the Crown of Shannon Styman; (v) failing to take into account as unfair prejudice as to the risk of comparative disadvantage in assessment of credibility of the appellant as against Shannon Styman; (vi) failing to take into account as unfair prejudice the importance of cross examination of an accuser in the context of circumstances where the Crown opened to the jury that oral evidence would be adduced, where the Crown did not disclose to the jury in opening the likelihood of unavailability, being a fact known to the Crown, and where both co-accused had disclosed the intention to give evidence; (vii) failing to take into account as unfair prejudice the absence of cross examination as to the explanation for the unavailability; (viii) failing to take into account as unfair prejudice the risk of improper implication of the unavailability being due to the conduct and guilt of the accused; (ix) failing to take into account as unfair prejudice the absence of consent of the appellant as to previous representations constituting admissions under section 80 (3) in the earlier proceedings; (x) failing to take into account as unfair prejudice the risk of the dulling effect of lengthy transcript reference reading improperly diminishing the efficacy of the cross examination on behalf of the appellant in the earlier proceedings as to the unreliability and want of credibility of Shannon Styman; (xi) failing to take into account as unfair prejudice the risk of jury's opportunity of observing Shannon Styman and his apparent contempt of court being improperly used as behaviour having an adverse affect on the jury's assessment of the accused. 5. The learned trial judge should have held under section 138 that the unfair prejudice to the appellant outweighed the probative value of the previous representations of Shannon Styman so as to exclude such evidence; 6. That in all the circumstances the verdict of the jury on the count of manslaughter was unreasonable and should be set aside; 7. That in all the circumstances the sentences imposed upon the applicant for manslaughter and for break and enter were excessive; 8. That the learned sentencing judge erred by failing to take into account as a special mitigating circumstance the appellant's call to triple 0, embellishment to ensure action, belief that the call would be acted upon to rescue the deceased and unexplained failure of the supervisor to activate the computerised incident dispatch system; 9. That the learned sentencing judge erred in fixing the non-parol period by failing to take into account the triple 0 call as special circumstances warranting a parol period less than two thirds of the head sentence; 10. That the learned sentencing judge erred in law given the overlapping nature of the two convictions by failing to order that the sentences be served concurrently; 11. That the learned sentencing judge erred in law by failing to expressly avoid punishing the appellant twice for the deprivation of liberty of the deceased. 11 I will deal in turn with the following issues: 1. The question of plea in bar and abuse of process (Taber's appeal ground 1 and Styman's appeal grounds 1 and 2). 2. The question of admission of hearsay evidence of Shannon Styman (Taber's appeal ground 3 and Styman's appeal grounds 3-5). 3. The question whether verdict was unreasonable (Taber's appeal ground 2 and Styman's appeal ground 6). 4. The challenge to the sentences (Taber's appeal grounds 4-7 and Styman's appeal grounds 7-11).

PLEA IN BAR AND ABUSE OF PROCESS 12 The charge of which both appellants were found guilty on 11 December 2002 was a charge under s.112(2) of the Crimes Act 1900. Section 112 is in the following terms: 112 Breaking etc into any house etc and committing serious indictable offence (1) Whosoever: breaks and enters any dwelling-house, or any building within the curtilage of any dwelling-house and occupied therewith but not being part thereof, or any school-house, shop, warehouse, or counting-house, office, store, garage, pavilion, factory, or workshop, or any building belonging to His Majesty or to any Government department, or to any municipal or other public authority, and commits any serious indictable offence therein, or

being in any dwelling-house, or any such building as aforesaid, or any school-house, shop, warehouse, or counting-house, office, store, garage, pavilion, factory or workshop, or any building belonging to His Majesty or to any Government department, or to any municipal or other public authority, commits any serious indictable offence therein and breaks out of the same, shall be liable to imprisonment for fourteen years.

(2) Aggravated offence A person is guilty of an offence under this subsection if the person commits an offence under subsection (1) in circumstances of aggravation. A person convicted of an offence under this subsection is liable to imprisonment for 20 years.

(3) Specially aggravated offence A person is guilty of an offence under this subsection if the person commits an offence under subsection (2) in circumstances of special aggravation. A person convicted of an offence under this subsection is liable to imprisonment for 25 years. 13 For the purpose of s.112, among other sections, the expression "circumstances of aggravation" is defined as follows in s.105A of the Crimes Act: 105A Definitions (1) In sections 106-115A: circumstances of aggravation means circumstances involving any one or more of the following: (a) the alleged offender is armed with an offensive weapon, or instrument, (b) the alleged offender is in the company of another person or persons, (c) the alleged offender uses corporal violence on any person, (d) the alleged offender maliciously inflicts actual bodily harm on any person, (e) the alleged offender deprives any person of his or her liberty, (f) the alleged offender knows that there is a person, or that there are persons, in the place where the offence is alleged to be committed. circumstances of special aggravation means circumstances involving either or both of the following: (a) the alleged offender wounds or maliciously inflicts grievous bodily harm on any person, (b) the alleged offender is armed with a dangerous weapon.

(2) The matters referred to in: (a) paragraph (c), (d) or (e) of the definition of circumstances of aggravation , or (b) paragraph (a) of the definition of circumstances of special aggravation , can occur immediately before, or at the time of, or immediately after any of the elements of the offence concerned occurred.

(2A) For the purposes of paragraph (f) of the definition of circumstances of aggravation , if there was a person, or there were persons, in the place in relation to which an offence is alleged to have been committed at the time it was committed, the defendant is presumed to have known that fact unless the defendant satisfies the court that he or she had reasonable grounds for believing that there was no one in the place.

(3) The definitions in subsection (1) are not mutually exclusive. 14 The particular circumstances of aggravation specified in the case of each appellant were those in pars.(b) and (e) of the definition. The serious indictable offence that was also an element of the s.112 offence was robbery, an offence under s.94 of the Crimes Act carrying a maximum penalty in excess of 5 years: cf. definition of "serious indictable offence" in s.4 of the Crimes Act.

Submissions 15 Mr. Street SC for the appellant Styman submitted that his conviction on the charge of aggravated break and enter involved a conclusive determination that he deprived the deceased of her liberty, in circumstance where that deprivation of liberty continued until her death; and that this in substance coincided with the elements of the manslaughter with which she was charged before Studdert J. Accordingly, those elements merged in the conviction, and Studdert J should have upheld Styman's entitlement to rely on a plea in bar to that charge. 16 Mr. Street referred to Pearce v. The Queen [1998] HCA 57, (1998) 194 CLR 610 at [18]-[26], and to Island Maritime Limited v. Filipowski [2006] HCA 30 at [25]-[30]; and he submitted that the latter case showed that a plea in bar of autrefois convict was available even where not all of the elements of the later charge were included in the former charge of which the accused was convicted. 17 Mr. Wendler for the appellant Taber adopted Mr. Street's submissions. He drew our attention to the decision of the Court of Criminal Appeal in R v. Stone [2005] NSWCCA 344, to the effect that there must be a conviction and sentence before a plea in bar in the nature of autrefois convict can succeed; and he submitted that that decision should be limited to cases where the accused has pleaded guilty, and should not extend to cases where the accused was found guilty by a jury. 18 Mr. Wendler also submitted that, even if a plea in bar was not available, there was an abuse of process because the manslaughter prosecution was, in legal reality, a trial for a more serious offence on the same facts already determined in the conviction for aggravated break and enter: cf. R v. Beedie [1997] 2 Cr App R 167, [1998] QB 356.

Decision 19 It is true that R v. Stone was dealing with a case where the earlier conviction relied on arose from a plea of guilty; but the judgment of the court was expressed in general terms as applying also to cases where there has been a finding of guilt by a jury. However, since in my opinion the appellants cannot in any event succeed on the basis of autrefois convict or abuse of process, it is not necessary to consider whether R v. Stone should be distinguished. 20 In Pearce, the following appears: 18 It is clear that the plea in bar goes to offences the elements of which are the same as, or are included in, the elements of the offence for which an accused has been tried to conviction or acquittal. There are, however, decisions that a person may not be prosecuted for one offence when that person has previously been prosecuted for "substantially the same" offence, or for an offence the "gist" or "gravamen" of which is the same as the subject of the earlier prosecution or, as was said in Wemyss v Hopkins [(1875) LR 10 QB 378], for the "same matter". It may be suggested that these cases indicate that a plea in bar is also available if a person is charged with different offences arising out of substantially the same set of facts.

19 Much of the difficulty in determining whether a plea in bar is available when a person is charged with different offences arising out of substantially the same facts can be seen to stem from two sources: first, the uncertainties inherent in the proposition that it is enough that the offences are "substantially" the same; and secondly, the attempt to identify the "sameness" of two offences by reference to the evidence that would be adduced at trial. But these difficulties may be more apparent than real.

20 In each of Chia Gee v Martin [(1905) 3 CLR 649] and Li Wan Quai v Christie [(1906) 3 CLR 1125], Griffith CJ identified the test for whether a plea in bar would lie as being "whether the evidence necessary to support the second [charge or prosecution] would have been sufficient to procure a legal conviction upon the first". At first sight this might suggest that it is appropriate to consider what witnesses would be called and what each of those witnesses could say about the events which gave rise to the charges. Closer examination reveals that the enquiry suggested is different; it is an enquiry about what evidence would be sufficient to procure a legal conviction. That invites attention to what must be proved to establish commission of each of the offences. That is, it invites attention to identifying the elements of the offences, not to identifying which witnesses might be called or what they could say. It is only if attention is directed to what evidence might be given, as opposed to what evidence was necessary, that the enquiry begins to slide away from its proper focus upon identity of offence to focus upon whether the charges arise out of the same transaction or course of events.

21 Further, when it is said that it is enough if the offences are "substantially" the same, this should not be understood as inviting departure from an analysis of, and comparison between, the elements of the two offences under consideration.

22 In this respect Wemyss is capable of being misunderstood. Wemyss had been convicted at petty sessions of an offence that being the driver of a carriage he had "by negligence or wilful misbehaviour, to wit, by striking a certain horse ridden" by the respondent caused hurt and damage to her. He was then charged (again at petty sessions) with unlawful assault. The court held that, the offences being summary offences, a plea of autrefois convict was not available but that a defence "in the nature of a plea of autrefois convict" was. The judgments of the members of the court (which were given ex tempore) use various expressions which have later been seized on as sufficiently expressing the test of the availability of a plea in bar.

23 Thus Blackburn J speaks of "proceedings for the same offence" and punishment "for the same matter"; Lush J speaks of prosecution "twice for the same offence" and conviction "again for the same act"; Field J speaks of twice being "punished for the same cause". (Examination of other reports of the same case reveal even greater differences in expression.) But, all of these expressions must be understood in their context. Their differences should not obscure the fact that the elements of each offence alleged against Wemyss were identical. The enquiry made in Wemyss was an enquiry about the offences that had been alleged, not about what other offences the relevant statutes might create. Thus the case against Wemyss on the first prosecution appears to have been not a case of negligent conduct but one of "wilful misbehaviour" constituted by his intentionally striking the victim's horse. That being so, the court was satisfied that the case propounded on the second prosecution was identical with the case propounded on the first.

24 On closer analysis, therefore, it may be that Wemyss and other cases that are said to support the proposition that a plea in bar is available when a person is charged with different offences arising out of the same set of facts do not do so. Moreover, there are sound reasons to confine the availability of a plea in bar to cases in which the elements of the offences charged are identical or in which all of the elements of one offence are wholly included in the other.

25 Shifting attention to whether the offences arise out of the same conduct, or out of a single event or connected series of events, would be to substitute for a rule prohibiting prosecution twice for a single offence a rule that would require prosecuting authorities to bring at one time all the charges that it is sought to lay as a result of a single episode of offending. That would raise still further questions. How would a single episode of offending be defined? Would its limits be temporal or would they be founded in the intentions of the actor?

26 Those are not questions that admit of certain answers and, whatever criteria are adopted, are not questions that could readily be answered at the time an accused enters a plea. In any event, such a test would, as we have said, shift attention away from the principal focus of the rule underlying the pleas in bar which is a rule against repeated prosecution for a single offence. It would be a test which would deny operation to some or all of the three other forces at work in this area: that several different offences may be committed in the course of a single series of events, that an offender can be punished only for the offence charged, not some other offence, and that charges will usually be framed in a way that reflects all of the criminal conduct of the accused. 21 Island Maritime contains the following comments on these paragraphs: 26 Counsel for the respondent attacked one aspect of Pearce v The Queen . It was the part of the following passage in the joint judgment to which emphasis has been added: "It is clear that the plea in bar goes to offences the elements of which are the same as, or are included in , the elements of the offence for which an accused has been tried to conviction or acquittal." Counsel said that the words "are included in" should have been "include". When the passage is read in context, however, it is plain that the proposition which counsel for the respondent said the reasons for judgment should have asserted was in fact encompassed in what was said in Pearce v The Queen . There are three particular aspects of the context to note.

27 One aspect of the context is that the words "are included in" were succeeded by a footnote reference to R v Elrington (1861) 1 B & S 688, [121 ER 870].. In that case the accused was charged on information with common assault. He was acquitted by justices of the peace, who certified that the information was not proved and was dismissed. The accused was then prosecuted on indictment for assault causing grievous bodily harm and assault causing actual bodily harm. The Court of Queen's Bench (Cockburn CJ and Blackburn J) held that the relevant statute meant that the certificate could be pleaded in bar to the indictment. However, the significance of the case goes beyond the operation of the statute, for Cockburn CJ remarked: "[W]e must bear in mind the well established principle of our criminal law that a series of charges shall not be preferred, and, whether a party accused of a minor offence is acquitted or convicted, he shall not be charged again on the same facts in a more aggravated form." The elements of assault causing grievous bodily harm are not "included in" the elements of common assault, but the former elements do include the latter.

28 The second matter of context is the statement appearing a little later in the joint judgment in Pearce v The Queen : "[T]here are sound reasons to confine the availability of a plea in bar to cases in which the elements of the offences charged are identical or in which all of the elements of one offence are wholly included in the other." R v Elrington was a case of that kind.

29 A third feature of the context is that in the footnote appearing next after the reference to R v Elrington , the joint judgment referred approvingly to Li Wan Quai v Christie . The explanation given of Griffith CJ's formulation of the test in that and other cases a little later in the joint reasons is consistent with the view that the joint judgment favoured acceptance of the plea of autrefois acquit where the elements of the offence charged second are the same as, or include, the elements of the offence charged first.

30 As the joint judgment pointed out, when Griffiths CJ said in Li Wan Quai v Christie that "[t]he true test whether [a plea of autrefois acquit] is a sufficient bar in any particular case is, whether the evidence necessary to support the second charge would have been sufficient to procure a legal conviction upon the first", his reference to "evidence" must be understood as a reference to the facts constituting the elements of the offence. One thing is clear. Griffith CJ was referring to a case, like R v Elrington , where the offence the subject of the second charge was, to use the words of Cockburn CJ, a more aggravated form of the offence the subject of the first charge. In the passage from Li Wan Quai v Christie just quoted, which was cited in Pearce v The Queen , Griffith CJ referred to the 21st edition of Archbold's Criminal Pleading . His statement of the "true test" was taken directly from Archbold , which, in turn, referred to R v Elrington . It cannot be that Pearce v The Queen was contradicting the propositions stated by Cockburn CJ and Griffith CJ. For our part, however, we find it unnecessary to decide whether the principle is wider than that stated in the older authorities, and whether it also covers a case in which the first prosecution was for the more aggravated form of offence and the second is for a lesser form. Such a case would be the reverse of that referred to by Cockburn CJ and Griffith CJ. These questions do not arise for decision. 22 Although it was submitted by the Crown before us that autrefois convict can apply only if all elements of the offence the subject of the later charge were included in elements of the offence for which the accused was convicted, there are indications to the contrary in these paragraphs. In particular, the quote from Elrington referred to in Island Maritime at [27] supports the view that, when a person has been either acquitted or convicted of assault, he should not be later charged with a aggravated form of assault. 23 On the other hand, the passages in Pearce make it clear that "several different offences may be committed in the course of a single series of events"; and that the rule as to autrefois convict is not intended to prevent a person being charged with offences that reflect all of the criminal conduct involved. The circumstance that there may be overlapping elements in these various offences would not mean that charges for all of them would be duplicitous, or that a conviction for one could give rise to a plea in bar in respect of others. 24 In this case, the most that can said is that there are overlapping elements. Aggravated break and enter involves elements not included in manslaughter, and manslaughter involves elements not included in aggravated break and enter. It may even be doubted whether deprivation of liberty of the deceased was one element of the offence of aggravated break and enter, as found by the jury, because another factor of aggravation (being in the company of another person or persons) was alleged; but even accepting that it was, the elements of death of the deceased and causation of that death were plainly not included. 25 Accordingly, even if a plea in bar of the nature of autrefois convict is available where there is a charge of a more aggravated form of the same offence for which the accused was previously convicted, that is not the case here: the charge of manslaughter is a charge for a quite different offence from that of aggravated break and enter, having different albeit possibly overlapping elements. 26 In my opinion also, the suggestion of abuse of process has no substance. It could not have been an abuse of process to charge the appellants with aggravated break and enter and manslaughter. They were in fact charged with aggravated break and enter and murder. Their conviction for murder was overturned, and a new trial ordered. Although there was a discretion in the Director of Public Prosecutions whether or not to proceed with the charge of manslaughter, it borders on absurdity to suggest that it was an abuse of process to do so.

HEARSAY EVIDENCE OF SHANNON STYMAN 27 This issue raises questions under ss.65, 83, 137 and the explanation of "not available" in cl.4(1) of the dictionary of the Evidence Act 1995, which are in the following terms: 65 Exception: criminal proceedings if maker not available (1) This section applies in a criminal proceeding if a person who made a previous representation is not available to give evidence about an asserted fact. (2) The hearsay rule does not apply to evidence of a previous representation that is given by a person who saw, heard or otherwise perceived the representation being made, if the representation was: (a) made under a duty to make that representation or to make representations of that kind, or (b) made when or shortly after the asserted fact occurred and in circumstances that make it unlikely that the representation is a fabrication, or (c) made in circumstances that make it highly probable that the representation is reliable, or (d) against the interests of the person who made it at the time it was made. (3) The hearsay rule does not apply to evidence of a previous representation made in the course of giving evidence in an Australian or overseas proceeding if, in that proceeding, the defendant in the proceeding to which this section is being applied: (a) cross-examined the person who made the representation about it, or (b) had a reasonable opportunity to cross-examine the person who made the representation about it. (4) If there is more than one defendant in the criminal proceeding, evidence of a previous representation that: (a) is given in an Australian or overseas proceeding, and (b) is admitted into evidence in the criminal proceeding because of subsection (3), cannot be used against a defendant who did not cross-examine, and did not have a reasonable opportunity to cross-examine, the person about the representation. (5) For the purposes of subsections (3) and (4), a defendant is taken to have had a reasonable opportunity to cross-examine a person if the defendant was not present at a time when the cross-examination of a person might have been conducted but: (a) could reasonably have been present at that time, and (b) if present could have cross-examined the person. (6) Evidence of the making of a representation to which subsection (3) applies may be adduced by producing a transcript, or a recording, of the representation that is authenticated by: (a) the person to whom, or the court or other body to which, the representation was made, or (b) if applicable, the registrar or other proper officer of the court or other body to which the representation was made, or (c) the person or body responsible for producing the transcript or recording. (7) Without limiting subsection (2) (d), a representation is taken for the purposes of that subsection to be against the interests of the person who made it if it tends: (a) to damage the person's reputation, or (b) to show that the person has committed an offence for which the person has not been convicted, or (c) to show that the person is liable in an action for damages. (8) The hearsay rule does not apply to: (a) evidence of a previous representation adduced by a defendant if the evidence is given by a person who saw, heard or otherwise perceived the representation being made, or (b) a document tendered as evidence by a defendant so far as it contains a previous representation, or another representation to which it is reasonably necessary to refer in order to understand the representation. (9) If evidence of a previous representation about a matter has been adduced by a defendant and has been admitted, the hearsay rule does not apply to evidence of another representation about the matter that: (a) is adduced by another party, and (b) is given by a person who saw, heard or otherwise perceived the other representation being made.

83 Exclusion of evidence of admissions as against third parties (1) Section 81 does not prevent the application of the hearsay rule or the opinion rule to evidence of an admission in respect of the case of a third party. (2) The evidence may be used in respect of the case of a third party if that party consents. (3) Consent cannot be given in respect of part only of the evidence. (4) In this section: third party means a party to the proceeding concerned, other than the party who: (a) made the admission, or (b) adduced the evidence.

137 Exclusion of prejudicial evidence in criminal proceedings In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant.

4 Unavailability of persons (1) For the purposes of this Act, a person is taken not to be available to give evidence about a fact if: (a) the person is dead, or (b) the person is, for any reason other than the application of section 16 (Competence and compellability: judges and jurors), not competent to give the evidence about the fact, or (c) it would be unlawful for the person to give evidence about the fact, or (d) a provision of this Act prohibits the evidence being given, or (e) all reasonable steps have been taken, by the party seeking to prove the person is not available, to find the person or to secure his or her attendance, but without success, or (f) all reasonable steps have been taken, by the party seeking to prove the person is not available, to compel the person to give the evidence, but without success. 28 At the previous trial before Barr J, Shannon Styman gave evidence in his defence that implicated the appellants as being parties to what happened to the deceased, and he was cross-examined by the Crown Prosecutor and by Counsel for each of the appellants. 29 In the course of the Crown case before Studdert J, Shannon Styman was called and went into the witness box, but he refused to give evidence concerning the facts of the case. The Crown then applied to have his evidence given before Barr J admitted. The primary judge held that Shannon Styman was not available within the meaning of that expression in s.65(1), because cl.4(1)(f) of the dictionary applied; and held that his evidence fell within s.65(3). He held that the notice provision in s.67 of the Evidence Act was not a bar to admission of the evidence; and then he addressed the question of the application of s.137 of the Act (it being clear that if the evidence qualified for admission under s.137, it would also satisfy the requirements of s.135). 30 He summarised the evidence given by Shannon Styman as follows: 28 The evidence give by Shannon Styman at the earlier trial is evidence that goes directly to the involvement of the accused in the events that occurred at the home of the deceased on the occasion that her home was invaded, the robbery occurred and the deceased was left bound and gagged. In short, Shannon Styman's evidence previously given was to the effect that the three men went to the house together after the accused told him of a previous unsuccessful attempt that they had made to break into the home of the deceased. According to Shannon Styman, when the three men went to the house, entry was gained through the back door when the accused Peter Taber used a sawn-down key to open that door. His evidence was that Peter Taber told him his part would be to restrain the deceased whilst Peter Taber and Ian Styman found the money in the house. His evidence was that the three men wore gloves when they entered the house, that Peter Taber took some "ladies undies" off the clothesline and that these were used when gagging the deceased. He gave evidence describing how the three men participated in gagging and binding the deceased and he said that whilst he held her down on the bed, the accused now before the Court made a search. He gave evidence that one of the cable ties on the deceased's hand was too tight and he called Ian Styman back into the bedroom and one of the cable ties was cut off, being replaced by duct tape. He said he saw Ian Styman find a bag, a black purse and a brown paper bag that contained money. The money having been discovered, the men left the house leaving the deceased bound and gagged on the bed in her bedroom. 31 The primary judge noted that this evidence was relevant to facts in issue in the case. He referred to a number of authorities. He noted that Shannon Styman was an accomplice, so the customary warning that his evidence may be unreliable would be given; and that the jury had seen him refuse to give evidence. He then referred to circumstantial evidence that lent some support to Shannon Styman's version of events. 32 The primary judge noted that he had to undertake the weighing process of probative value against the danger of unfair prejudice; and he noted the following matters put forward by Counsel for the appellants as being prejudicial: (i) The accused will not be able to confront one of the most important witnesses in the case. Mr Wendler submitted: "It is fundamental in any criminal trial that the accused be permitted to confront his accuser and he [that is, Shannon Styman] is an accuser" (T 669);

(ii) If Shannon Styman's version is to be introduced in the way in which the Crown seeks to introduce it, the jury will be deprived of the opportunity of assessing his demeanour;

(iii) Shannon Styman is, on his own account, to be regarded as an accomplice and this, of course, raises the issue of unreliability;

(iv) Mr Wendler submitted that although he had the opportunity of cross examining Shannon Styman at the earlier trial, he was prevented from cross examining him on his antecedents, and Shannon Styman has a significant criminal history, including offences of stealing motor vehicles and break enter and steal. Had Shannon Styman been called at the present trial, Mr Wendler could have cross examined him on his record, and this would have affected his credibility;

(v) If Shannon Styman's version is admitted, the Crown will have the advantage of using that version against the accused for the purpose of cross examination, and the accused did not have a corresponding advantage when cross examining Shannon Styman in the previous proceedings. 33 The primary judge discussed these points, and concluded that the evidence should be admitted. He directed that no transcript of the evidence given by Shannon Styman should go into the jury room, but that the evidence should be read to the jury.

Submissions 34 Mr. Street submitted that s.65 of the Evidence Act was intended to apply to prosecution witnesses, not to evidence given by a co-accused. He submitted that ALRC report 38 par.128 envisaged the use of previous representations under s.65(3) in the context of a prosecution case, and not evidence of a co-accused; and par.152(d) made it clear that an admission should not be admissible against a co-party without the co-party's consent, this being enacted by s.82(2) of the Evidence Act. 35 In addition, Mr. Street submitted that the primary judge erred in taking into account irrelevant considerations, notably the conviction of the appellants for offences under s.112 of the Crimes Act, and the circumstantial evidence that the primary judge said lent support to the evidence. Mr. Street submitted that the primary judge should have focussed on the probative value of the evidence itself, and weighed that probative value against its substantial prejudicial effect. 36 Mr. Street submitted that the evidence was highly prejudicial, for the following reasons: (1) Much of the evidence was given in response to leading questions put in cross-examination by the Crown (this being a relevant consideration not taken into account by the primary judge). (2) The likelihood that the jury would misuse the evidence, being unable to assess the impact of cross-examination where that material was only read to them. (3) The Crown had opened the case to the effect that it would lead evidence from Shannon Styman, even though it was then aware that the witness would not co-operate. (4) The account given by Shannon Styman was adapted to conform to what was understood to be the correct timing of mobile phone calls at the time of the trial before Barr J; whereas at the time of the trial before Studdert J it was known that this timing was out by one hour; and there was never an opportunity to explore the discrepancies that this involved in cross-examination of Shannon Styman. 37 Mr. Wendler submitted that the primary judge erred in deciding that the probative value of the evidence was not outweighed by the danger of unfair prejudice; and this resulted in a miscarriage of justice for the following reasons: (1) The ruling created an atmosphere which precipitated an unacceptable risk of miscarriage of justice, having the practical legal effect of forensically disarming the defence of both appellants. (2) The ruling dispossessed the defence of any forensic capacity in respect of the main prosecution witness. (3) The ruling denied the appellants the opportunity to confront their accuser. (4) The ruling infiltrated the trial with an artificial atmosphere: the transcript took about seven hours to read, and there was no way of knowing which parts read from the transcript the jury absorbed and which parts it lost because of sensory overload. (5) The ruling gave the Crown the advantage of the fruits of its cross-examination of Shannon Styman in the previous trial, and the advantage of putting its case in cross-examination to the appellants when they gave evidence; whereas the appellants did not have the opportunity of putting their case in cross-examination of the main Prosecution witness. (6) The ruling dispossessed the jury of any realistic basis to assess the credibility and reliability of the main Prosecution witness. (7) The jury could think there had been a previous trial at which the appellants had been convicted.

Decision 38 In my opinion, there is no sufficient reason for reading down s.65 so that it would apply only to prosecution witnesses: the words are clear and in their terms extend to the evidence of a co-accused. If evidence is admitted under s.65, it does not have to satisfy the requirements for admissibility as an admission, which is dealt with in s.82(2). There was no submission before us that the requirement that the witness be not available was not satisfied, or that the evidence should not be admitted by reason of the notice provisions in s.67. 39 The primary judge, in recording the background to the application to have the evidence admitted under s.65, did record that the appellants had been convicted of murder and what the primary judge called aggravated robbery, and that, while the conviction for murder was set aside, only the sentence for aggravated robbery was set aside. However, in my opinion there is no indication that the primary judge relied on that as supporting his decision as to whether the evidence should be admitted having regard to s.137. 40 Some of the considerations advanced before this Court were not explicitly addressed by the primary judge, in particular the circumstances that some of Shannon Styman's evidence was given in response to leading questions by the Crown, that the Crown had opened to the effect that Shannon Styman would give evidence, that there was no opportunity to cross-examine Shannon Styman on errors associated with earlier misapprehension as to the time of the mobile telephone calls (the failure to make the adjustment for daylight saving), and that the jury could have thought there had been a previous trial at which the appellants had been convicted. However, it was not suggested that these considerations were expressly put to the primary judge; and in my opinion they are not such that it could be said the primary judge was in error in not addressing them explicitly. 41 The decision of the primary judge was appropriately reasoned, and those reasons do not suggest that the primary judge made any error in deciding the questions posed by s.137. The decision is one of fact, degree and impression, and so should not be subject to appellate intervention unless the appeal court considers it to be wrong. In my opinion, the decision is not shown to be wrong. The evidence of Shannon Styman was of substantial probative value, and it was very much a matter for the jury to assess how much weight should be given to it. There was some danger of prejudice through misuse of the evidence by the jury, but that danger could be minimised by appropriate directions. No complaint has been made about directions given by the primary judge. 42 For those reasons, in my opinion this ground of appeal fails.

UNREASONABLE VERDICT 43 In order to assess the contention that the verdict was unreasonable, it is helpful first to outline some facts that were not subject to any significant dispute, and then to outline some of the main evidence that was led on both sides relating to matters that were in dispute. 44 Greenwell Point, where the deceased lived, was to the east and a little to the south of Nowra, and about 9-10 kilometres from Nowra. The appellant Taber lived at 211 Old Southern Road, Warragee, a suburb of Nowra to the south-east, on the road to Greenwell Point. The appellant Styman lived at Sanctuary Point, about 20-25 kilometres south of Nowra on St. George's Basin. Shannon Styman lived at Old Erowal Bay, also on St. George's Basin and about one kilometre from the appellant Styman's house. There was also some evidence about the house of Taber's mother, which was in Jervis Street in Nowra. 45 There was undisputed evidence that the deceased hoarded cash and had a lot of $100 notes. In 1999, she lent her niece Melinda Ravell $23,500.00 in cash, and in 2000 she lent her sister Cheryl Ravell $22,000.00 in cash. 46 The appellant Taber had moved into the house at Warragee in about September 2000. That house was then occupied by Leonie Ravell, a niece of the deceased (and sister of Melinda Ravell and daughter of Cheryl Ravell); and Taber then shared the main bedroom of that house with her. 47 On 22 December 2000, Taber called Melinda and asked to borrow $2,000.00 from her for a holiday in Queensland; and Melinda refused this request. 48 On 24 December 2000, the deceased reported to police an attempted break-in at her house on the previous night. 49 On 7 January 2001, at 4.25am (daylight saving time) there was a 9 second call from Taber's mobile phone to Ian Styman's mobile phone, picked up at the Nowra tower (this being consistent with the call being made either from Greenwell Point or from Nowra). 50 At 4.54am on that morning, Ian Styman made a triple 0 call from a telephone box in East Nowra, about 9 kilometres from the deceased's house, in which he asked for a car to be sent to Spies Avenue, Greenwell Point saying "There was a couple of blokes that went in there with guns, second house from the corner … there's a little old lady there". No response was sent to this call, apparently because the call was considered a hoax. 51 Between 6.30am and 7.00am that morning, Taber, Leonie Ravell, Ian Styman and Shannon Styman travelled to Sydney in Taber's mother's car. At Sydney, Taber purchased a Ford utility for $1,400.00 cash, including old $100 notes; and Ian Styman bought a 4-wheel driver Suzuki for $4,300.00 cash, including old $100 notes. 52 On 8 January 2000, Shannon Styman purchased a Honda motor cycle for $900.00, made up of old $50 notes. Also on that day, one David Bennett installed a security door on the back door of the deceased's house. He found the back door ajar, but did not go inside. He locked the security door and left after fitting it. 53 On 19 January 2000, the deceased's body was found. Her ankles and wrists were tied with cable ties and grey/silver duct tape; there was a pillow slip over her head held by duct tape; and there were panties in her mouth held by duct tape. There was no signed of forced entry into the house. 54 Important evidence in the Crown case included the following. 55 There was the evidence given by Shannon Styman at the previous trial, read to the jury. The trial judge's summary of the broad effect of this evidence was given above. I will however set out some of the details of that evidence. 56 Shannon Styman's evidence included evidence that on 4 January 2001, Ian Styman took him to Taber's mother's house, where they met Taber. Taber said his girlfriend's aunt lived at Greenwell Point and had enough money to buy a house; that he and Ian Styman had gone there to try to break in and were unsuccessful because the lady woke up; and that they had gone there once with Andrew Peake dressed as security guards and had used a key to get in via the back door. 57 His evidence was that on 5 January 2001, Ian Styman took Shannon Styman to Taber's house, where they discussed using cable ties and duct tape to tie the lady up, and Taber produced a key which Ian Styman said he had modified into a skeleton key. 58 His evidence was that on 6 January 2001 Ian Styman took Shannon Styman to Taber's house at about 12.30pm to 1.30pm; that Ian Styman took Shannon Styman home at about 3.30pm with an arrangement to pick him up at about 6.30pm. Ian Styman did so, and took him to Taber's house; and the three of them left in Taber's mother's car at about 8.30pm to 9.30pm, at which time Leonie Ravell was in bed. They drove to Greenwell Point, drove past the deceased's house, drove to a reserve where they stayed 1-2 hours, drove back past the house where they saw a light on, drove to the wharf, then drove back to the house, tried the key and it worked. They decided not to go into the house immediately. 59 His evidence was that about 4am on 7 January they went inside. They tied up the deceased in her bedroom. Ian Styman and Taber searched the room, and money was found in a paper bag. They left by the back door. They were in the house about 20 minutes, and had gloves on the whole time. Ian made the triple 0 call from the first phone box they came to on the way back to Taber's house. They went to Taber's house and counted the money. There was $23,300.00. Shannon Styman received $2,300.00, Ian Styman received $7,000.00, and Taber received $14,000.00 of which $7,000.00 was given to Leonie Ravell. 60 In the cross-examination contained in that evidence, Shannon Styman admitted he was a skilful liar, and agreed that he had lied to police in four interviews. 61 Evidence was given by Andrew Peake, a friend of Ian Styman. He said that one day in early December 2000 he had lunch with Ian Styman, and that they then went to Taber's house, after which Peake followed Ian Styman and Taber to Taber's mother's house. He went into that house and found them tying each other up with cable ties. The three of them then dressed in blue shirts with ties and at about 7pm, drove in Taber's mother's car to Greenwell Point. They went into a pub, then Peake drove the car to near the RSL club and dropped the other two off. About 15-20 minutes later, Peake received a call from Ian Styman asking him to pick them up again at the RSL club, which he did. 62 Evidence was given of a search of Taber's house on 24 January 2001. Among other things, police officers gave evidence of finding two pieces of used duct tape in the back of Taber's utility, this being the one purchased on 7 January 2001. There was forensic evidence that the deceased's DNA was found on this tape. 63 Evidence was given by one Donyelle Turner that she moved in with Leonie Ravell and Taber a couple of days before Christmas 2000. She heard Taber ask Leonie if her sister would lend money for a Queensland holiday, after which Taber used his mobile phone and then said that the sister could not lend the money. Taber then suggested that they ask Leonie's aunt; and Taber and Leonie Ravell went off in Taber's mother's car, returning a couple of hours later. According tof this evidence, Leonie Ravell was annoyed that her aunt had not lent them money, and said "Well we could always kill her"; to which Taber said they would not get away with it. 64 Evidence was led of an interview with Taber on 24 January 2001, in which Taber said the money he had spent on the utility and other items was money he had saved. He was also asked about duct tape, and in the course of those questions he said "You also found some in the back of me ute". 65 Evidence was led of an interview with Ian Styman on 3 and 26 March 2001. He said he was not out on the night of 6-7 January 2001. He said he paid for the Suzuki 4-wheel drive with money accumulated from his work. 66 There was evidence of conversations recorded on listening devices, in one of which Taber was recorded as saying concerning duct tape "there was like two balls of it screwed up in the back of me ute, cos we tape all the stuff together with it". 67 Taber gave sworn evidence before the jury and was cross-examined. He denied the evidence given by Peake. He said there was no conversation in front of Ms. Turner concerning borrowing from Leonie's aunt and no approach made to the deceased to borrow money. He said that on 6 January 2001, Shannon Styman had left his house at about 6.15pm in his mother's car, and that Ian Styman had left at about 8.30pm-8.45pm on his motor bike. He stayed up that night playing computer games in the lounge room. 68 Taber's evidence was that at about 3am-4am on 7 January 2001, Shannon Styman came to his house and said that he had done over a drug dealer. Taber then telephoned Ian Styman (recorded at 4.25am) and arranged to meet him across from a Honda shop not far from his house; and Ian Styman came there 10-15 minutes later. The three of them then went back to Taber's house and at that time Shannon Styman said that he "did an old bag" and said he had tied her up. They went to a phone box, and Ian Styman made the triple 0 call. They then put stuff from the car apparently taken from the deceased's house into a bag, weighed it down with a brick, and it was thrown into the river from Nowra Bridge. 69 According to Taber's evidence, then he, together with Leonie Ravell, Ian Styman and Shannon Styman drove to Sydney. In a car yard at Lansvale, Shannon Styman gave him $5,000.00 in cash, some of which he used to buy the utility. Later on he gave $1,500.00 of this to Leonie. 70 Taber said he had no recollection of any pieces of tape in his utility. 71 Ian Styman gave evidence before the jury and was cross-examined. He denied the evidence given by Peake. He said he left Taber's house on 6 January 2001 at 8.30pm-9pm. He was at home when he received a call in the early hours of 7 January from Taber, in which Taber said that Shannon Styman had done something stupid. He went on his motor bike to meet Taber and Shannon Styman near the Honda shop. His account of what happened then was similar to that of Taber's. When they went to Sydney, Shannon Styman gave him $5,000.00 in cash in a Lansvale car yard. He used some of this to buy the Suzuki motor vehicle. 72 The appropriate test for determining whether a verdict is unreasonable is that established by M v. The Queen (1994) 181 CLR 487 at 493-95 (endorsed in Jones v. The Queen (1997) 191 CLR 439 at 450-52): Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations. …

In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence. In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.

Submissions 73 The following submissions were advanced by Mr. Wendler for Taber, and were adopted by Mr. Street, for Ian Styman. 74 Mr. Wendler submitted that Shannon Styman's evidence could not be relied on. He gave in effect six different accounts of his involvement in the robbery of the deceased, originally saying he had absolutely no involvement. Later he said "I went in got the cash"; and later again he gave another account but refused to name accomplices. He said he only commenced to co-operate with police "when I found out I was going to be charged with murder". The version of his involvement which he gave in examination in chief was different from that which he gave in cross-examination. 75 Shannon Styman said that Taber and Ian Styman used their teeth to cut the duct tape while applying the tape to gag the deceased; but despite extensive forensic testing of the tape, no DNA of the appellants was discovered. Mr. Wendler submitted that an example of the absurdity of his evidence was that, at a time when according to him the deceased was gagged and had a pillow case over her head, Taber asked her to "tell us where the money is and we won't hurt you". 76 Later on, Shannon Styman had told his partner Nadia Don that he had "robbed a drug dealer"; and that was, according to the testimony of both the appellants, the explanation given to them by Shannon following his unannounced arrival at Taber's home in the early hours of 7 January 2001. His evidence was that the proceeds of the robbery were divided between himself, the appellants and Leonie Ravell; but Leonie Ravell did not testify that she received or was involved in the division of the robbery. 77 Mr. Wendler submitted that Shannon Styman was unable to give an adequate account of what he and the appellants were doing for six and a half hours at Greenwell Point prior to their alleged entry into the home of the deceased at about 4am on 7 January 2001. 78 He submitted that mobile phone records were capable of rebutting his evidence that he was with the appellants on the afternoon of 4 January 2001 when he alleged there were conversations concerning the planning of the robbery. He submitted that the mobile phone evidence contradicted Shannon Styman's evidence that he used his mobile phone shortly after leaving the deceased's house: because of the correction for daylight saving time, the call was not made until about one hour later. 79 He submitted that both appellants testified that they observed items of jewellery in the back seat of Taber's mother's car which Taber had lent to Shannon on the afternoon preceding the robbery; and Nadia Don confirmed that Shannon had given her some rings which turned out to be too small for her. The appellants' contention was that these rings formerly belonged to the deceased. 80 Mr. Wendler submitted that the evidence of Andrew Peake was wholly unreliable. His evidence was that the episode he described occurred in early December 2000; and it was unequivocally demonstrated through mobile phone records that he was not in the Nowra area in early December. Taber's father gave evidence to the effect that he would have been at home at the time Peake alleged the episode took place, and that he never saw Peake at the home. Peake gave Ian Styman's wife a different account of where the tying-up episode took place, saying that it took place in the garage. 81 Further, Mr. Wendler submitted, the actual description of the episode was a nonsense, suggesting that the two men were tying each other up. 82 Mr. Wendler submitted that the evidence of Donnyelle Turner was wholly unreliable, because, by her own evidence, she was intoxicated by Indian hemp and consumed the drug every day whilst staying at the Old Southern Road house. 83 As regards the finding of the duct tape in the tray of the Ford Utility, Mr. Wendler submitted that the video of that discovery was capable of suggesting that the police knew the tape was there because it had been previously put there by police. The witness Megan Hearne testified that she saw a police officer approach the Ford and appear to handle some duct tape in the rear of the vehicle. The duct tape appeared to be of shiny and new appearance which, the defence suggested, was inconsistent with it having been in the rear of the utility between 7 and 24 January 2001. 84 Mr. Wendler submitted that the appellants gave sworn evidence, which they adhered to, exculpating themselves from involvement in the robbery.

Decision 85 Dealing first with Peake's evidence, although there were problems with it, the jury could reasonably have accepted that incidents occurred substantially as described by Peake, albeit later in December than Peake believed. The jury could reasonably have accepted the evidence as being substantially true, rather than being either grossly mistaken or fabricated. Peake's evidence had some support from Ian Styman's wife, who saw both appellants wearing blue business shirts in about December 2000. 86 If the jury accepted the substance of Peake's evidence, this was very damaging evidence against both appellants. It associated them both with preparations for the robbery, and was denied by both of them in circumstances where their denial could hardly itself be mistaken (that is, the denial was either true or deliberately false). 87 The evidence of Donnyelle Turner was attacked on the basis of her cannabis use, and the contrary evidence of Leonie Ravell. However, on the Crown case, Leonie Ravell, although a Crown witness, was living with Taber and was involved in the offence at least to the extent of being given $7,000.00 when the money was divided, and the jury could reasonably have rejected her evidence on this aspect of the case. It could also reasonably have accepted Ms. Turner's evidence as being substantially true rather than either grossly mistaken or fabricated, particularly when her evidence about the approach to Melinda for a loan was not disputed. 88 If Ms. Turner's evidence was accepted as substantially true, it was very damaging evidence against Taber: it associated him with an approach to the deceased to obtain money shortly before the robbery; and Taber's denial on oath of any conversation about borrowing money from the deceased or any approach to the deceased could not plausibly be mistaken: the denial was either true or deliberately false. 89 The inculpation of Taber by this evidence also tends to inculpate Ian Styman, because if Taber was involved with Shannon Styman in the robbery, Ian Styman's account of how he was phoned by Taber and told "Shannon has done something stupid" would be strongly discredited, as would be his account of being given $5,000.00 in Sydney by Shannon Styman. 90 There is some force in criticisms of police evidence concerning the finding of the duct tape in Taber's utility; but these criticisms are far from decisive, and it was very much a matter for the jury to assess whether this police evidence was reliable. The police evidence had some support from Taber's own statements about the duct tape. If the jury accepted the police evidence, as it could reasonably have done, that evidence and the DNA evidence concerning the tape was powerful evidence implicating Taber. The journey to Sydney to purchase the utility occurred immediately after whatever Taber was doing on the early morning of 7 January 2001, so it is not implausible that he may have had excess pieces of duct tape in his pockets which he later emptied into the rear of the utility. 91 On any reasonable view of the evidence, Taber and Ian Styman each had at least $5,000.00 of the money taken from the deceased's house; and their explanation of how they came to have it was highly implausible. It meant that Shannon Styman must have conceived the breaking and entering and the robbery, although he had no connection with the deceased and no direct means of knowledge of her circumstances; he must have been able to enter her house without forcible entry; he must have tied up the deceased either by himself or in the company of some other person he did not tell the appellants about and who disappeared; and he must have then given them each $5,000.00 for no reason they could suggest. Their evidence also required an explanation of how a 9 second phone call from Taber to Ian Styman at 4.25am led Ian Styman to being in a position to make the triple 0 call in East Nowra 29 minutes later, this involving Ian Styman receiving the call at 4.25am, understanding what was being said inside 9 seconds and asking for no explanation, and getting from St. George's Basin to Nowra (20-25 kilometres) in 10-15 minutes. 92 Thus, quite apart from Shannon Styman's evidence, there was a strong circumstantial case against the appellants. There is force in criticisms of Shannon Styman's evidence as read to the jury; but the substance of its content was plausible and fitted well with other evidence and with the probabilities. 93 In all these circumstances, in my opinion it was plainly open to the jury to be satisfied beyond reasonable doubt of the guilt of the appellants.

SENTENCES Submissions 94 Mr. Street for Styman submitted that sentence failed to take into account the very significant factor of the triple 0 call. Styman made the call in such a way as to ensure it would be acted on, reasonably believed it would be acted on, and clearly intended that it would secure the release of the victim. The judge's criticisms that there were lies in the call and that there was no follow-up call do not affect this: lies were told (for example, about guns) to increase priority, and it was reasonable for Styman to believe the call had been effective. The Crown's failure to call the person responsible for the decision not to act on the triple 0 call confirmed that this belief was reasonable. There was a public interest in encouraging such calls. 95 Mr. Street submitted that the sentence for manslaughter was manifestly excessive and more proportionate to murder. It was not in the worst category of manslaughter cases, and a proper weighing of sentencing criteria would result in a sentence of an order of 8 to 10 years. The sentence for aggravated break and enter was infected by the same errors; and a proper weighing of sentencing criteria would result in a sentence of 6 to 8 years. 96 Further, Mr. Street submitted, the primary judge did not take into account that Styman was in protective custody. There was no proper basis for anything other than concurrent sentences: the primary judge should have explicitly avoided punishing Styman twice for the deprivation of the deceased's liberty. 97 Mr. Street submitted that there were special circumstances justifying a lesser non-parole period, namely the triple 0 call and the fact that Styman was in protective custody. 98 Mr. Wendler made similar submissions for Taber, and also pointed out that this was Taber's first time in custody. He also submitted that Taber had a justifiable sense of grievance, having regard to the lesser sentence received by Shannon Styman, who made no contribution to the triple 0 call, had a previous history of breaking and entering, and committed the offence while on parole.

Decision 99 The primary judge did accept that the making of the triple 0 call was a circumstance to be taken into account; and it is not to the point that he did not refer to it as a mitigating circumstance when specifically referring to s.21A(3) of the Crimes (Sentencing Procedure) Act 1999, since it did not fall with any of the paragraphs of that sub-section. It did not fall with paragraph (m), because it was not made for the purpose of assisting law enforcement authorities. The judge's comments to the effect that the call was incomplete and false, and that the lack of any follow-up showed indifference to the deceased's fate, were apposite; and they do not suggest that the judge did not give appropriate weight to the call as a mitigating factor. 100 Indeed, as submitted by the Crown, but for the call the crime would have been in the worst category of manslaughter; and it was only by reason of that call that the appellants' convictions for murder were set aside. 101 The primary judge referred to protective custody, and said he did take into account the conditions of the appellants' custody. In circumstances where there was no evidence as to what was likely to happen in the future, there was no need for further elaboration. 102 In my opinion, having regard to the cruelty shown towards the deceased and the suffering inflicted on her, and the appellants' complete lack of remorse, it cannot be said that the sentences were manifestly excessive. As pointed out by the primary judge, circumstances that may constitute the crime of manslaughter are so varied that little assistance is to be derived from sentences in other cases. Similar comments apply to the aggravated break and enter, noting (as did the primary judge) that the appellants must not be punished twice for common elements of the offence. The primary judge did take account of the common elements of the offences in determining the extent to which the sentences would be concurrent; and he noted that the element of taking money from the deceased was not included in the elements of manslaughter, and that the death of the deceased was not included in the aggravated break and enter. In those circumstances, in my opinion his making the sentences largely concurrent, but cumulative to the extent of one year, was appropriate. 103 No ground is shown to alter the proportion of the non-parole period. 104 In my opinion, the argument from parity based on Shannon Styman's sentence has no merit. Shannon Styman was enlisted into the commission of this offence by the appellants, he pleaded guilty to aggravated break and enter and offered a plea of guilty to the manslaughter charge of which he was convicted, and he showed remorse.

CONCLUSION 105 Accordingly, I propose the following orders in each case: 1. Appeal against conviction dismissed. 2. Leave to appeal against sentence granted, and appeal against sentence dismissed. 106 HOWIE J: I agree with Hodgson JA. 107 PRICE JA: I agree with Hodgson JA. **********

18/07/2007 - "cl.4(1)(b)" changed to "cl.4(1)(f)" - Paragraph(s) par.[29]

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