Citation: TABER v REGINA; STYMAN v REGINA [2007] NSWCCA 116
Court: New South Wales Court of Criminal Appeal
Date: 26 April 2007
Judge(s): Hodgson JA; Howie J; Price J
Background
The two appellants were convicted in 2002 of the murder of a woman who died after they broke into her home, bound and gagged her, and left her. A co-offender was convicted of manslaughter at the same trial. The appellants' murder convictions were subsequently quashed by the Court of Criminal Appeal, which also upheld their convictions for aggravated break and enter and ordered a new trial on a charge of manslaughter.
At the retrial before Studdert J, the appellants were convicted of manslaughter and sentenced to 18 years' imprisonment with a non-parole period of 13 years and 6 months. They were also re-sentenced on the aggravated break and enter charge, receiving 10 years' imprisonment.
The appellants challenged both their convictions and their sentences on appeal to the Court of Criminal Appeal.
Legal Issues
- Whether the plea of autrefois convict (broadly: that a person cannot be tried again for an offence of which they have already been convicted) barred the manslaughter prosecution, given that the aggravated break and enter conviction shared overlapping elements
- Whether, alternatively, the further proceedings amounted to an abuse of process
- Whether it was permissible to admit evidence of a co-offender's previous trial testimony under s 65 of the Evidence Act 1995, including whether that section applies only to prosecution witnesses or also to co-accused persons
- Whether the admission of that hearsay evidence was unfairly prejudicial under s 137 of the Evidence Act 1995
- Whether the jury's verdict of manslaughter was unreasonable
- Whether the sentences imposed were manifestly excessive and whether the sentencing judge gave adequate weight to mitigating factors, including a triple-zero emergency call made during the offence
Decision
Plea in bar and abuse of process: The Court rejected the autrefois convict argument. The doctrine applies where the same offence, or a necessarily included offence, has already been determined. Here, the elements of manslaughter and aggravated break and enter were not identical. While there was factual overlap, that did not make one offence a necessarily included element of the other. The Court also found no abuse of process in proceeding with the manslaughter trial.
Admission of co-offender's prior testimony: The Court held that s 65 of the Evidence Act 1995 was not confined to evidence given by prosecution witnesses. It could extend to evidence given by a co-accused in earlier proceedings, provided the statutory conditions were met. The co-offender was found to be "not available" within the meaning of the Act, and the trial judge did not err in admitting the prior testimony. The Court also rejected the submission that the admission was unfairly prejudicial under s 137, finding that the trial judge had approached the balancing exercise correctly.
Unreasonable verdict: The Court found that the verdict was not unreasonable. There was sufficient evidence from which the jury could be satisfied beyond reasonable doubt that the appellants' acts caused the death of the deceased, and that those acts constituted a dangerous act for the purposes of manslaughter.
Sentencing: The Court declined to interfere with the sentences. It accepted that the appellants' participation in making a triple-zero emergency call was a mitigating factor, and that the trial judge had taken this into account. However, the Court noted that the crime involved serious cruelty and prolonged suffering, and that both appellants showed no remorse. The Court also rejected a parity argument based on the co-offender's lesser sentence, noting that the co-offender had been enlisted by the appellants, had pleaded guilty, and had shown remorse.
Orders Made
In each case:
- Appeal against conviction dismissed
- Leave to appeal against sentence granted, and appeal against sentence dismissed
Key Takeaways
- The Court of Criminal Appeal confirmed that the plea of autrefois convict requires identity (or necessary inclusion) of offences, not merely factual overlap between the elements of separate charges arising from the same conduct.
- Under s 65 of the Evidence Act 1995, prior testimony given by a co-accused in earlier proceedings can be admitted as hearsay evidence in a subsequent trial, provided the statutory preconditions are satisfied; the section is not limited to evidence given by prosecution witnesses.
- In assessing unfair prejudice under s 137, a trial judge is permitted to take into account the strength of the Crown's circumstantial case as part of the balancing exercise.
- A mitigating factor, such as an emergency call made during the commission of an offence, does not preclude a substantial sentence where the overall circumstances involve serious cruelty, prolonged suffering, and a complete absence of remorse.
- Parity in sentencing between co-offenders requires meaningful comparison; where co-offenders differ in culpability, plea, and conduct after the offence, a marked difference in sentence may be entirely appropriate.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW) ss 94, 105A, 112
- Evidence Act 1995 (NSW) ss 65, 83, 137 and Dictionary cl 4(1)
Cases:
- Island Maritime Limited v Filipowski [2006] HCA 30
- Jones v The Queen (1997) 191 CLR 439
- M v The Queen (1994) 181 CLR 487
- 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