R v Taber; R v Styman; R v Styman - NSW Caselaw PDF

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01/03/2021

R v TABER; R v STYMAN; R v STYMAN - NSW Caselaw

New South Wales Supreme Court

CITATION :

R v TABER; R v STYMAN; R v STYMAN [2002] NSWSC 1239

CURRENT JURISDICTION:

Common Law

FILE NUMBER(S) :

SC 70212/02; 70210/02; 70211/02

HEARING DATE(S) :

09/09/02-13/09/02, 16/09/02-20/09/02, 23/09/02, 24/09/02, 26/09/02, 27/09/02, 30/09/02, 01/10/02-03/10/02, 08/10/0211/10/02, 14/10/02-18/10/02, 21/10/02-25/10/02, 28/10/0231/10/02, 01/11/02, 04/11/02-08/11/02, 11/11/02-15/11/02, 18/11/02-22/11/02, 25/11/02-29/11/02, 02/12/02, 04/12/0206/12/02, 09/12/02-11/12/02

JUDGMENT DATE :

11 December 2002

PARTIES :

Regina v Peter David TABER Regina v Ian Craig STYMAN Regina v Shannon Troy STYMAN

JUDGMENT OF :

Barr J at 1

COUNSEL :

Crown: JP Kiely SC Accused Taber: GD Wendler Accused Ian Styman: R McCrudden Accused Shannon Styman: PD Young

https://www.caselaw.nsw.gov.au/decision/549fa7b53004262463b540d8

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SOLICITORS :

Crown: SE O'Connor Accused Taber: Van Houten Accused Ian Styman: A P Sparke & Broad Accused Shannon Styman: Nikola Velcic & Co

CATCHWORDS :

Criminal law - murder by reckless indifference - whether omission to rescue deceased deliberately placed in danger capable of constituting actus reus. - Criminal law - murder by reckless indifference - whether binding, gagging and abandonment of deceased and subsequent omission to rescue deceased from danger constitute a single transaction. Criminal law - murder by reckless indifference - whether mens rea and actus reus must exist at the same time. - Criminal law murder by reckless indifference - whether unsuccessful attempt to rescue deceased deliberately placed in danger determines duty to remove danger.

CASES CITED :

People v Beardsley 113 NW 1128 (1907) R v Conde (1967) 10 Cox CC 547 R v Gibbins and Proctor (118) 13 Cr App R 134 R v Hallett [1969] SASR 141 R v Instan [1893] 1 QB 450 R v Joukhadar, Court of Criminal Appeal, New South Wales, 13 June 1975, unrep R v Lawford (1993) 61 SASR 542 R v Lowe (1850) 3 CAR & K 123 R v Marriott (1838) 8 Car & P 425 R v Miller [1980] 2 QB 532 R v Nicholls (1874) 13 Cox CC 75 R v Shepherd (1861) Le & Ca 3 147 R v Taktak (1988) 14 NSWLR 226 Thabo Meli & Ors v R [1954] 1 All ER 373

DECISION :

See judgment

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

Graham Barr J https://www.caselaw.nsw.gov.au/decision/549fa7b53004262463b540d8

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Wednesday, 11 December 2002

70212/02 – REGINA v Peter David TABER 70210/02 – REGINA v Ian Craig STYMAN 70211/02 – REGINA v Shannon Troy STYMAN

JUDGMENT – On the basis on which murder should be left to the jury 1 HIS HONOUR: At the close of the Crown case each accused moved for a directed verdict of not guilty of murder. In a judgment of 1 November 2002 I refused to give such a direction. I added some remarks on 6 November. As that latter judgment shows, I was unsure whether the events occurring between the time of the attack on the deceased and the time of her death ought properly to be regarded as a single continuous act or as an act followed by an omission. Following my remarks of 6 November, and before counsel’s closing addresses began, I made it clear that I proposed to leave to the jury the availability of a verdict of guilty of murder in any accused’s case constituted by an omission to fulfil a legal duty to remove the deceased from the danger in which she had been put combined with a realisation at any time during the period of omission and ending with the death of the deceased that she would probably die. Now that the jury have retired and there is more time to deal with the matter I wish to record my reasons for leaving murder to the jury in the manner that I have. 2 When the Crown Prosecutor opened the case to the jury he described the manner in which the deceased was tied up and abandoned and mentioned that the accused Ian Styman had made a telephone call to the emergency services number. The Crown Prosecutor continued The Crown says that this call is evidence that the accused realised the seriousness of the situation in which they had left the deceased. The Crown says they realised that left unattended she would be unable to free herself and would die. The Crown also says the accused cannot exonerate themselves from the events by one call to the police. The Crown says it was incumbent upon them to ensure the deceased was in fact rescued and they well knew unless someone came to her assistance she would surely die. The operator at triple zero thought the call was a hoax and it was not followed up. As the Crown says, it was the duty of the accused to ensure the deceased was in fact rescued. 3 During the trial the Crown gained the advantage of sworn evidence from the accused Shannon Styman. He had pleaded guilty at the commencement of the trial to the charge of aggravated robbery. Apart from the offence charged in the last count in the indictment, aggravated sexual intercourse without consent, which Shannon Styman swore was not committed, his evidence was generally consistent with the Crown case. The Crown substantially adopted as accurate his description of the manner in which and the times at which the accused prepared and executed their attack on the deceased. There seems no reasonable basis, if the jury accept Shannon Styman’s account as reliable, for them to reject his evidence about the details of what happened, particularly about the times that the accused entered and left the deceased’s house and the https://www.caselaw.nsw.gov.au/decision/549fa7b53004262463b540d8

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circumstances in which Ian Styman made the telephone call to emergency services. Accordingly, counsel for Shannon Styman invited the jury to be satisfied that the three accused left the deceased’s house at about 4.30 am and jointly telephoned emergency services at 4.54 am and the Crown Prosecutor made no submission to the contrary. Although the Crown Prosecutor invited scepticism about whether the accused really expected (or even intended) the deceased to be rescued by the police following the telephone call he never suggested any alternative reason for making the telephone call and I considered his submissions in that respect to be without substance. Accordingly I directed the jury that if any accused abandoned the deceased intending to alert the authorities with the intention or expectation that the deceased should be rescued by the police they could not be satisfied beyond reasonable doubt that at that time that accused fully realised that the deceased would probably die. See the remarks of the members of the Full Court of the Supreme Court of South Australia in R v Hallett [1969] SASR 141 at 155. 4 The telephone call did not achieve its intended effect and the deceased was not rescued. She died at a time estimated at between nine and eleven days after the making of the telephone call. It was necessary to consider what significance if any ought to be given to the events which followed the telephone call. Defence counsel argued at the time of the no-case submission and continued to submit that those events had no significance and could not be taken into account to ground a charge of murder. Everything ended, they said, with the telephone call, by which time the act causing death was complete. Since no reasonable jury could find that any accused then fully contemplated the probable death of the deceased, each must be acquitted of murder. Counsel also submitted, inconsistently I thought, that a conviction for manslaughter by criminal negligence could follow, based on breach of duty. 5 It is convenient first to consider whether any accused came under any duty the failure to perform which might constitute an omission causing death. 6 The act causing death was undoubtedly the binding, gagging and abandonment of the deceased. By the time her attacker or attackers left her house she had been rendered unable to move to any significant extent, call for help, eat or drink. She died of dehydration. A number of pieces of evidence combine to show that the accused desired the deceased to be rescued having suffered no more harm than would ordinarily be consequent upon the binding and gagging. The last such event was the telephone call. 7 The evidence shows that no accused made any attempt after that telephone call to have the deceased delivered from the danger in which she had been deliberately left. What then, if any, was the obligation of any responsible accused between the time of the telephone call and the death of the deceased? 8 There exist well-recognised categories of circumstances which give rise to a legal duty in one person to act in a particular way towards another, a failure to perform which will render the obligated person liable to be dealt with criminally. Such categories have been listed in a number of cases, for example R v Taktak (1988) 14 NSWLR 226, R v Joukhadar Court of Criminal Appeal, New South Wales, 13 June 1975, unreported, People v Beardsley 113 NW 1128 (1907), R v Lawford (1993) 61 SASR 542. I gratefully adopt the judgment of Yeldham J in R v Taktak at 236-245. 9 There can be no liability for nonfeasance unless there is a legal, as opposed to a moral, duty to act: R v Taktak; R v Joukhadar; People v Beardsley. So an innocent bystander has no legal https://www.caselaw.nsw.gov.au/decision/549fa7b53004262463b540d8

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duty to rescue a drowning man. However, a person may by voluntary conduct convert a moral obligation to a legal one. Examples are R v Gibbins and Proctor (1918) 13 Cr App R 134, where a woman assumed responsibility to care for the child of her de facto husband, R v Nicholls (1874) 13 Cox CC 75, where a woman took on the care of her grandchild. In R v Marriott (1838) 8 Car & P 425 the prisoner, who was convicted of manslaughter on an indictment for murder, had taken an aged and infirm woman and confined her against her will and had not provided her with the food, clothing and medicine she needed to sustain life. 10 In People v Beardsley McAlvay CJ said this at 1129-1130 The law recognizes that under some circumstances the omission of a duty owed by one individual to another, where such omission results in the death of the one to whom the duty is owing, will make the other chargeable with manslaughter … This rule of law is always based upon the proposition that the duty neglected must be a legal duty, and not a mere moral obligation. It must be a duty imposed by law or by contract, and the omission to perform the duty must be the immediate and direct cause of death … Although the literature upon the subject is quite meager and the cases few, nevertheless the authorities are in harmony as to the relationship which must exist between the parties to create the duty, the omission of which establishes legal responsibility. One authority has briefly and correctly stated the rule, which the prosecution claims should be applied to the case at bar, as follows: “If a person who sustains to another the legal relation of protector, as husband to wife, parent to child, master to seaman etc, knowing such person to be in peril, wilfully and negligently fails to make such reasonable and proper efforts to rescue him as he might have done, without jeopardizing his own life, or the lives of others, he is guilty of manslaughter at least, if by reason of his omission of duty the respondent person dies. So one who from domestic relationship, public duty, voluntary choice or otherwise has the custody and care of a human being, helpless either from imprisonment, infancy, sickness, age, imbecility, or other incapacity of mind or body is bound to execute the charge with proper diligence, and will be held guilty of manslaughter if by culpable negligence he lets the helpless creature die”. 11 Dealing with the English cases of R v Nicholls and R v Instan [1893] 1 QB 450, the Chief Justice continued at 1130 The charge of this nisi prius judge recognizes the principle that a person may voluntarily assume the care of a helpless human being, and, having assumed it, will be held to be under an implied legal duty to care for and protect such person; the duty assumed being that of caretaker and protector to the exclusion of all others. 12 In R v Taktak Yeldham J identified at least four situations where failure to act might constitute breach of a legal duty, namely where a statute imposes a duty to care for another, where one stands in a certain status relationship to another, where one has assumed a contractual duty to care for another and where one has voluntarily assumed the care of another and so secluded the helpless person as to prevent others from rendering aid (at 243-244). 13 The facts of R v Taktak were as follows. The appellant was a drug addict who procured for a heroin dealer the services of two prostitutes. He took them to a party held by the dealer. The https://www.caselaw.nsw.gov.au/decision/549fa7b53004262463b540d8

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prostitutes took heroin at the party. Later on, in response to a telephone request, the appellant went to certain premises to collect one of the prostitutes. He found her sitting on the floor of a building moaning and unable to speak. He took her by taxi back to his own premises. He realised that she had taken heroin. He tried unsuccessfully to wake her. He did not summon medical help. She failed to recover consciousness and died. Yeldham J concluded at 246 that the critical question was whether there was evidence that the appellant had voluntarily assumed the care of the deceased “and so secluded the helpless person so as to prevent others from rendering aid”. 14 In R v Lawford the Court exemplified at 547-548 situations in which a duty might arise, including this (vi) where the defendant has himself put a person in danger by a wrongful act, he is probably under a duty not to leave that person in danger. 15 There is a related question, namely whether it is correct or preferable to categorise what caused death as an act followed by an omission or as a continuous act, commencing when the deceased was attacked and ending when she died. Ultimately the Crown submitted that either approach was permissible. 16 This question has been considered in a number of cases. In R v Miller [1980] 2 QB 532 the appellant lay on a mattress with a lighted cigarette and set fire to it when he fell asleep. He awoke and realised that the mattress was smouldering. He did nothing about it but moved to another room in the premises, where he was a squatter. The house caught fire and the appellant was charged with arson. In due course he was convicted and appealed. The problem said on appeal to arise was the lack of coincidence between the act which caused the fire, namely the accidental setting fire to the mattress, and the state of mind necessary for arson, which did not arise until later on when the appellant arose and realised that the mattress was on fire. The Court held that although the actus reus and mens rea normally had to coincide, here the conduct of the appellant had to be looked at as a whole. If as a whole it contained the actus reus and the relevant mens rea they were sufficiently coincident. An unintentional act followed by an intentional or reckless omission to rectify it or its consequences could … amount to an intentional or reckless act – an adoption by a deliberate or reckless failure of what the appellant had unintentionally done earlier on. 17 The Court of Appeal certified for appeal to the House of Lords the question whether the actus reus of the offence of arson was present when the appellant accidentally started the fire and thereafter, intending to destroy or damage property belonging to another or being reckless whether such property would be destroyed or damaged, failed to take any steps to extinguish the fire or prevent damage. Lord Diplock said this at [1983] 2 AC 176 I cannot see any good reason why, so far as liability under criminal law is concerned, it should matter at what point of time before the resultant damage is complete a person becomes aware that he has done a physical act which, whether or not he appreciated that it would at the time when he did it, does in fact create a risk that property of another will be damaged, provided that, at the moment of awareness, it lies within his power to take steps, either himself or by calling for the assistance of the fire brigade if this be necessary, to prevent or minimise the damage to the property at risk. Let me take first the case of a person who has thrown away a lighted https://www.caselaw.nsw.gov.au/decision/549fa7b53004262463b540d8

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cigarette expecting it to go out harmlessly, but later becomes aware that, although he did not intend it to do so, it has, in the event, caused some inflammable material to smoulder and that unless the smouldering is extinguished promptly, an act that the person who dropped the cigarette could perform without danger to himself or difficulty, the inflammable material will be likely to burst into flames and damage some other person’s property. The person who dropped the cigarette deliberately refrains from doing anything to extinguish the smouldering. His reason for so refraining is that he intends that the risk which his own act had originally created, though it was only subsequently that he became aware of this, should fructify in actual damage to that other person’s property; and what he so intends in fact occurs. There can be no sensible reason why he should not be guilty of arson. If he would be guilty of arson, having appreciated the risk of damage at the very moment of dropping the lighted cigarette, it would be quite irrational that he should not be guilty if he first appreciated the risk at some later point in time but when it was still possible for him to take steps to prevent or minimise the damage. and at 178 –179 The recorder, in his lucid summing up to the jury (they took 22 minutes only to reach their verdict), told them that the accused, having by his own act started a fire in the mattress which, when he became aware of its existence, presented an obvious risk of damaging the house, became under a duty to take some action to put it out. The Court of Appeal upheld the conviction, but its ratio decidendi appears to be somewhat different from that of the recorder. As I understand the judgment, in effect it treats the whole course of conduct of the accused, from the moment at which he fell asleep and dropped the cigarette onto the mattress until the time the damage to the house by fire was complete, as a continuous act of the accused, and holds that it is sufficient to constitute the statutory offence of arson if at any stage in that course of conduct the state of mind of the accused, when he fails to try to prevent or minimise the damage which will result from his initial act, although it lies within his power to do so, is that of being reckless whether property belonging to another would be damaged. My Lords, these alternative ways of analysing the legal theory that justifies a decision which has received nothing but commendation for its accord with common sense and justice have, since the publication of the judgment of the Court of Appeal in the instant case, provoked academic controversy. Each theory has distinguished support. Professor J C Smith espouses the “duty theory” (see [1982] Crim LR 526 at 528); Professor Glanville Williams who, after the decision of the Divisional Court in Fagan v Metropolitan Police Com...