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Court of Criminal Appeal 10 September 2004

R v Styman; R v Taber

[2004] NSWCCA 245

Assault & violenceHomicideTheft & property
CRIMINAL LAW MURDER RECKLESS INDIFFERENCE TO HUMAN LIFE OMISSION TO REMOVE FROM DANGER CAUSATION EFFECT OF 000 CALL

Citation: R v Styman; R v Taber [2004] NSWCCA 245
Court: NSW Court of Criminal Appeal
Date: 10 September 2004
Judges: Sheller JA, Sperling J, Adams J

Background

In the early hours of 7 January 2001, two appellants and a co-offender broke into the home of an elderly woman at Greenwell Point, bound her wrists and ankles with duct tape and cable ties, gagged her, and robbed her of over $23,000. They then left her. She was found dead approximately two weeks later. The autopsy confirmed the cause of death was smothering and dehydration associated with restraint.

The appellants maintained at trial that a co-offender had attacked and tied up the deceased before involving them, and that they had played no part in the assault. The co-offender gave contrary evidence, having already pleaded guilty to robbery in company. A significant undisputed fact was that one appellant made a 000 call from a payphone on 7 January 2001 reporting a break-and-enter at the address, but the call was not acted upon by the operator.

The jury convicted both appellants of murder and aggravated robbery. The co-offender, tried on the same facts, was convicted only of manslaughter. The trial judge sentenced both appellants to life imprisonment for murder, and to 20 years for the aggravated break-and-enter offence. Both appealed.

  • Whether the trial judge was correct to refuse directed verdicts of acquittal on the basis that there was no evidence the appellants' conduct caused the deceased's death
  • Whether the jury directions on murder, manslaughter, the legal duty to rescue, causation, and joint enterprise were adequate and correct
  • Whether the murder verdicts were unreasonable, given the mental element required for murder by omission (that the accused fully realised the deceased would probably die unless rescued) had not been established
  • Whether the 000 call broke the causal chain between the appellants' omission and the deceased's death
  • Whether the sentences for aggravated breaking and entering were excessive

Decision

Causation and the 000 call. The Court confirmed the basic principle that an accused's conduct, whether by act or omission, must contribute significantly to death, but need not be its sole or immediate cause. The Court found it was clearly arguable that the deceased would not have died but for the appellants' failure to rescue her after placing her in danger, and that had the 000 call been acted upon she would have survived. The question of whether the failure of the emergency operator to act on the call broke the causal chain, and whether the appellants' omission remained a significant contribution to death, should have been left to the jury. The trial judge erred in not doing so. However, the Court found no reasonable prospect that a properly directed jury would have found otherwise on causation, so the error did not produce a miscarriage of justice.

Directions on murder and manslaughter. The Court found the trial judge had adequately distinguished between manslaughter by criminal negligence and murder in both oral and written directions. The critical distinction between the two was the mental element: murder by omission (under the reckless indifference limb of s 18(1)(a) of the Crimes Act 1900) required that the accused, having placed the deceased in danger, fully realised at some point before her death that she would probably die unless they acted to rescue her or procured her rescue. Criminal negligence, by contrast, involves a lower standard of awareness.

Whether the murder verdicts were unreasonable. This was the central ground on which the appeals succeeded. The Court found that the evidence did not support a finding that either appellant had fully realised, at any relevant time, that the deceased would probably die without rescue. The divergence between the appellants' convictions for murder and the co-offender's conviction for only manslaughter on materially the same facts was a factor the Court considered. The murder verdicts were held to be unreasonable and could not be supported having regard to the evidence.

Sentences for aggravated breaking and entering. The Court granted leave to appeal against these sentences and set them aside, ordering that further submissions be received and a fresh sentencing hearing be listed.

Orders Made

  • Appeals allowed in part
  • Verdicts of guilty of murder quashed for each appellant
  • New trial ordered for each appellant on the charge of manslaughter
  • Crown granted liberty to apply within 28 days under s 7(2) of the Criminal Appeal Act 1912 for substitution of verdicts of guilty of manslaughter in lieu of the new trial order
  • Leave to appeal granted against sentences for aggravated breaking and entering; those sentences set aside
  • Proceedings listed before the Registrar for directions on further written submissions and to fix a hearing date for resentencing

Key Takeaways

  • Murder by omission under the reckless indifference limb of s 18(1)(a) of the Crimes Act 1900 requires proof that the accused, having placed the victim in danger, fully realised at some point before death that the victim would probably die without rescue. This is a higher mental element than criminal negligence, which supports manslaughter.

  • Where an accused places a victim in danger and then fails to act, causation of death by omission is a jury question. A trial judge should not withhold that question from the jury simply because an intervening failure by a third party (such as an emergency operator not acting on a 000 call) contributed to the fatal outcome.

  • An error in failing to leave causation to the jury will not necessarily produce a miscarriage of justice if there was no reasonable prospect that a properly directed jury would have found differently on that element.

  • Inconsistent verdicts between co-accused tried on materially the same facts can inform appellate scrutiny of whether a verdict was unreasonable, though they are not determinative on their own.

  • Under s 7(2) of the Criminal Appeal Act 1912, the Court of Criminal Appeal may substitute a verdict of guilty of a lesser offence rather than order a new trial, and this option remains available to the Crown by application even where the court has directed a new trial.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 18(1)(a)
- Criminal Appeal Act 1912 (NSW), ss 6, 7

Cases
- Royall v The Queen (1990) 172 CLR 378
- R v Crabbe (1985) 156 CLR 464
- Jones v The Queen (1997) 191 CLR 439
- M v The Queen (1994) 181 CLR 487
- R v Taktak (1988) 14 NSWLR 226
- Taktak v R (1983) 34 A Crim R 334
- R v Miller [1980] 2 QB 532; [1983] 2 AC 175
- Campbell v The Queen (1980) 2 A Crim R 157
- Lawford & Anor v R (1993) 61 SASR 542
- People v Beardsley (1907) 113 NW 1128