Tekely v R; Nagle v R

Introduction and Common Background 3 On 6 March 2006 the present appellants, Mr. Alan John Tekely and Mr. Craig Michael Nagle, jointly stood trial before her Honour Judge Hock, sitting in the District Court at Sydney. They were so tried upon a joint indictment containing three counts. 4 Count 1 charged each appellant with the manslaughter of one Antoni Rolfi on 20 December 2000 at Fairfield. 5 Count 2 was laid in the alternative and charged each of the appellants with having assaulted, at the same time and place, the same victim, thereby occasioning to him actual bodily harm. 6 Count 3 charged the appellants jointly with having unlawfully imprisoned Antoni Rolfi at Fairfield on 20 December 2000. There was a third person presented in connection with Count 3 but that is a matter of no moment in connection with the present appeals. 7 The jury found each of the appellants guilty as charged in Counts 1 and 3. 8 The offence of manslaughter, as charged in Count 1 of the indictment, contravenes section 24 of the Crimes Act 1900 (NSW). It attracts upon conviction a statutory maximum penalty of imprisonment for 25 years. The offence of unlawful imprisonment, as charged in Count 3 of the indictment, is a common law offence and the penalty in any particular case is at large. 9 In due course Mr. Tekely was formally convicted of the offences of which the jury had found him guilty. For the offence of manslaughter he was sentenced to imprisonment for a term of 6 years to commence on 27 January 2006 and to expire on 26 January 2012, with a non-parole period of 3 years 9 months to commence on 27 January 2006 and to expire on 26 October 2009. For the offence of unlawful imprisonment he was sentenced to imprisonment for a fixed term of 6 months to commence on 27 January 2006 and to expire on 26 July 2006. 10 Mr. Nagle, also, was in due course formally convicted of the two offences of which the jury had found him guilty. For the offence of manslaughter he was sentenced to a term of imprisonment of 5 years to commence on 29 January 2006 and to expire on 28 January 2012, with a non-parole period of 2 years 9 months to commence on 29 January 2006 and to expire on 28 October 2008. For the offence of unlawful imprisonment he was sentenced to imprisonment for a fixed term of 6 months to commence on 29 January 2006 and to expire on 28 July 2006. 11 Mr. Tekely now appeals against his conviction for manslaughter. He seeks, also, leave to appeal against the asserted severity of his sentence. He relies upon only one ground of appeal against conviction, namely, that the verdict of the jury is unreasonable and cannot be supported having regard to the evidence at trial. He advances two grounds in support of his application for leave to appeal against sentence: first, that the sentence imposed upon him for the offence of manslaughter is manifestly excessive and, secondly, that the learned sentencing Judge erred in finding that he was "only entitled to delay up to 21 October 2005". 12 Mr. Nagle, too, appeals against his conviction for manslaughter. His grounds of appeal are more discursive than those of Mr. Tekely. Mr. Nagle's grounds of appeal against conviction are: "(1) Her Honour erred in her directions to the Jury by inviting them to consider the co-offender's record of interview as part of the crown case against the appellant for manslaughter. (2) Her Honour erred in her directions to the Jury on manslaughter and joint criminal enterprise. (3) The convictions were unreasonable because: a. There is a reasonable doubt whether the appellant was presently participating in a joint criminal enterprise when the blows said to have caused death were inflicted. b. The blows said to have caused death were not objectively dangerous. c. The prosecution failed to exclude as a reasonable possibility that the injuries causing death had been occasioned prior to the incident said to involve the appellant." 13 Mr. Nagle, too, seeks leave to appeal against the alleged severity of the sentence passed upon him for the manslaughter offence. There is only one ground advanced in support of that application, namely, that parity of sentences "requires some downward adjustment of sentence should the co-accused (sic) sentence appeal be successful". 14 The relevant facts are, in the case of each appellant, extensive and somewhat complicated. It will be, therefore, useful to begin a canvass of the relevant facts by quoting the following succinct and helpful overview which introduces the Crown's written summary of the trial: "It was the Crown case that Mr Tekely struck a number of blows to the abdomen of the deceased and at least one of the blows caused internal injuries which led to the death of the deceased. It was the Crown case that those assaults were an unlawful and a dangerous act amounting to manslaughter. In the alternative it was the Crown case Mr. Tekely assaulted the deceased occasioning actual bodily harm. It was the Crown case that Mr. Tekely was also guilty of keeping the deceased unlawfully restrained and detained against his will, during which time he was assaulted, lost consciousness and died shortly afterwards. ……….. ." "It was the Crown case that Mr. Nagle , by assaulting the deceased and assisting Mr. Tekely, was guilty of manslaughter by joint criminal enterprise, in that he was present as a party to an assault that amounted to a dangerous and unlawful act. In the alternative it was the Crown case Mr. Nagle assaulted the deceased occasioning actual bodily harm. It was the Crown case that Mr. Nagle was also guilty of keeping the deceased unlawfully restrained and detained against his will, during which time he was assaulted, lost consciousness and died shortly afterwards. ……. ." 15 The bare outline thus provided is fleshed out helpfully and as follows in the remarks on sentence of the learned primary Judge: "By way of background the offenders, the deceased, Antoni Rolfi, his brother Shannon Rolfi, Roslyn Tekely the wife of Alan Tekely and Gunter Horvath shared a house at 5 Polding Street, Fairfield. The members of that household were apparently all friends and took care of each other. However, on 19 and 20 December 2000 events occurred which led to the tragic and avoidable death of Antoni Rolfi. Those events unfolded in the following way. On the weekend of 16 and 17 December Mr. Shannon Rolfi who is six years older than his brother and Antoni who had turned twenty on 11 December left Sydney and they drove to Orange to visit their mother and sister. The young men returned to Sydney on Sunday evening without any unusual occurrence although Shannon noticed on the way home that his brother was a little quieter than usual. On Tuesday 19 December Antoni went to work as he usually did. However, at about the middle of the day he was noticed to be unwell. He left work after asking his boss for $38 for food and he was given $20. Mr. Rolfi was next seen at Joe's Fruit World in Wetherill Park at about 2.00 p.m. to 2.30 p.m. He appeared confused and was acting somewhat strangely. He bought some fruit seconds, that is slightly bruised fruit which was not put up for regular sale. At about 5.20 p.m. Mr. Antoni Rolfi was seen across the road from 61 Polding Street, he was on his knees holding onto a shopping trolley. Later the same day he had a conversation with a homeowner, Mr. Fa, in Teresa Street, Smithfield. He had the fruit in a trolley. Mr. Fa described him as friendly and happy but he was acting strangely, as though he knew Mr. Fa. He didn't see him again after about 7 p.m. or 7.30 p.m. At about 9 p.m. Antoni returned home. His housemates, including his brother, had been concerned about him. He walked in naked holding a filing cabinet which contained fruit. He was not making a great deal of sense and in particular he was talking of Andrea, "his true love". The evidence established that Andrea, a family friend roughly the same age as Antoni, had neither seen nor spoken to him since 1993. Ultimately, Antoni went to bed after displaying some disturbing behaviour in particular loading a spear gun and waving it at or threatening his housemates with it. On 20 September 2000, Roslyn Tekely, Craig Nagle and Gunter Horvath all left the house at about 6.00 a.m. to go spear-fishing. Shannon Rolfi was dropped at work at Mascot on the way. That left the offender, Alan Tekely and Antoni Rolfi alone in the house. What happened next is unclear but later in the morning Tekely rang his wife to ask her to return as there was something wrong with Antoni. She, Mr. Nagle and Mr. Horvath were already almost home and they arrived just after 12 noon. The house was in disarray and things had been smashed. Antoni was in a very disturbed state. Mr. Tekely said that Antoni had threatened him with a small axe which was kept on display in the kitchen. Mr. Horvath gave evidence, which I accept, that shortly after he walked in the door he saw the offender Tekely strike Antoni with a backhand blow to the face with such force that Antoni lost his balance. Within minutes of entering the house, Mrs Tekely left again to collect Shannon Rolfi so that he could help to control his brother. That round trip to Mascot and back took approximately ninety minutes. On their return an even more chaotic scene prevailed. Shannon described it as mayhem, (p 66 of the transcript). He was confronted by his brother in a state that he had not witnessed for many years. Antoni was threatening to kill them and he needed to be restrained. Shannon attempted to do that as he had done many years before by holding him in a bear-hug until he calmed down. Shannon Rolfi gave evidence at p 50 that "he was screaming and lashing out, it reminded me of one of the fits he had when he had AHDD as a child". I interpolate here that Antoni had Attention Hyperactivity Deficit Disorder as a child. The evidence established that once diagnosed and placed on appropriate medication his behaviour improved dramatically. As he grew older he had less need for medication and had ceased taking it about two years prior to his death. Shannon gave evidence that Antoni became more and more uncontrollable kicking out at anyone who came near. He was screaming, "I hate you all and I'm going to kill you all" and Shannon gave evidence that he, Antoni, had a wild look in his eyes. Ultimately, he couldn't hold him and he was handed a pair of handcuffs. He placed Antoni in a chair and he was handcuffed with his hands behind his back. Antoni was kept like that for some time during which time the offender Tekely administered the blows which caused his death. I am satisfied beyond reasonable doubt that there were at least four such blows of considerable force to Antoni's stomach, forehand and backhand. The offender Tekely also slapped Antoni to the face about ten times. Indeed he admitted doing so at answer 293 of his recorded interview. The offender Nagle joined in the assault on Antoni by striking him to the face or head at least twice. It is difficult to determine how long Antoni was restrained in the chair but it must have been at least an hour, probably longer. At some stage Antoni lost colour and began to lose consciousness. The handcuffs were removed and he was taken outside. The offenders finally realised that he was seriously ill. Mr. Nagle called an ambulance and Mr. Tekely performed mouth to mouth resuscitation. The ambulance officers arrived at 2.57 p.m. but Mr. Rolfi was already dead."