R v Styman; R v Taber - [2004] NSWCCA 245

CITATION: R v Styman; R v Taber [2004] NSWCCA 245

HEARING DATE(S): 19 February 2004
20 February 2004

JUDGMENT DATE:
10 September 2004

JUDGMENT OF: Sheller JA at 1; Sperling J at 1; Adams J at 1

DECISION: 1. Appeals allowed in part; 2. In the case of each appellant, quash the verdict of guilty of murder; 3. There be a new trial of each appellant upon the charge of manslaughter; 4. Provided that Order 3 is subject to the condition that the Crown has liberty to apply within 28 days for orders under s7(2) of the Criminal Appeal Act 1912 substituting verdicts of guilty of manslaughter, failing which, the order is to take effect; 5. Grant leave to appeal against the sentences imposed on each appellant for aggravated breaking and entering and committing a serious indictable offence and set aside those sentences; 6. Direct that the proceedings be listed before the Registrar for directions as to the filing of further written submissions and to fix a further hearing for resentencing before this Court.

CATCHWORDS: CRIMINAL LAW - murder - reckless indifference to human life - omission to remove from danger - causation - effect of 000 call - whether trial Judge correct in refusing to direct verdicts of acquittal - directions on murder and manslaughter - whether accompanying mental elements correctly stated - whether causation of death should have been left to the jury - whether verdicts of murder unreasonable - whether open to jury to conclude that the accused, having put the deceased in danger of death, fully realised, at any time before her death, that she would probably die unless they acted to rescue her or procure her rescue - s7(2) Criminal Appeal Act 1912 - whether there should be a new trial on the alternative count of manslaughter - whether sentences for aggravated robbery excessive

LEGISLATION CITED: Crimes Act 1900
Criminal Appeal Act 1912, s6, s7

CASES CITED: Campbell v The Queen [1981] WAR 286; (1980) 2 A Crim R 157
Jones v The Queen (1997) 191 CLR 439
Lawford & Anor v R (1993) 61 SASR 542
M v The Queen (1994) 181 CLR 487
People v Beardsley (1907) 113 NW 1128
R v Crabbe (1985) 156 CLR 464
R v Miller [1980] 2 QB 532 (Court of Appeal); [1983] 2 AC 175 (House of Lords)
R v Taktak (1988) 14 NSWLR 226;
Royall v The Queen (1990) 172 CLR 378
Taktak v R (1983) 34 A Crim R 334

PARTIES :
Ian Craig Styman - Appellant
Peter David Taber - Appellant
Crown

FILE NUMBER(S): CCA 2003/3228 (60327/03); 2003/3044 (60326/03)

COUNSEL: Mr J C Papayanni for the Appellant Styman
Mr G D Wendler for the Appellant Taber
Mr R D Cogswell SC with Mr M C Grogan for the Crown

SOLICITORS: Van Houten Solicitors for the Appellants
Director of Public Prosecutions

LOWER COURTJURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S): 70210/02; 70212/02

LOWER COURT
JUDICIAL OFFICER : Barr J

- 1 -

2003/3228 (60327/03)
2003/3044 (60326/03)

Sheller JA
Sperling J
Adams J

Regina v Ian Craig Styman

Regina v Peter David Taber

On 19 January 2001, Mrs Joy Golbie Alchin was found dead in her house at 23 Spies Avenue, Greenwell Point. Mrs Alchin was lying face down on a mattress on her bedroom floor. Her wrists and ankles were tied together with grey duct tape and cable ties. There was a pair of underpants folded to form a wad against Mrs Alchin’s mouth and a pillowcase had been placed over her head. There was duct tape wound tightly around her mouth, lower jaw and neck. According to an autopsy report tendered by the Crown, Mrs Alchin had died between 1pm on 5 January 2001 and 12pm on 19 January 2001, but more likely some time between 16 and 18 January 2001. The immediate cause of death was smothering and dehydration associated with restraint.

It was the Crown case that the appellants, Ian Styman and Peter Taber, together with Shannon Styman, broke into Mrs Alchin’s house in the early hours of 7 January 2001, bound and gagged her, robbed her of over $23,000 and then abandoned her. The appellants, in their evidence at trial, contended that Shannon Styman, without their participation, attacked Mrs Alchin and tied her up before arriving at Taber’s house at 3am on 7 January 2001. The appellants, on this basis, denied playing any part in the attack. Shannon Styman, however, asserted that he was part of a joint attack and pleaded guilty before the trial began to the charge of robbery in company of the other two offenders and gave evidence accordingly.

For the charge of murder the Crown relied upon that part of s18(1)(a) of the Crimes Act 1900 which provides that murder shall be taken to have been committed where the act or omission of the accused, causing the death charged, was done or omitted with reckless indifference to human life. The Crown case against each accused in relation to murder was therefore based on an omission to rescue Mrs Alchin when at the time of the omission the accused fully realised that the omission would probably cause her death.

The trial involved an extensive examination of evidence from the appellants, Shannon Styman, experts and other lay witnesses. Significant, for the purposes of this appeal is the undisputed fact that on 7 January 2001, Ian Styman made a 000 telephone call from a pay phone on Greenwell Point Road, Nowra East reporting a break and enter in Spies Avenue. This call was not acted upon.

On 11 December 2002, the jury returned verdicts against Taber and Ian Styman of guilty of murder and of aggravated robbery but not guilty of aggravated sexual intercourse without consent and against Shannon Styman of not guilty of murder but guilty of manslaughter and not guilty of aggravated sexual assault.

The trial Judge sentenced Taber for the offence of breaking and entering a dwelling house and committing therein a serious indictable offence in circumstances of aggravation to imprisonment for twenty years and for the murder of Mrs Alchin to imprisonment for life. The same sentences were imposed on Ian Styman. Shannon Styman was sentenced for the offence of breaking and entering a dwelling house and committing therein a serious indictable offence in circumstances of aggravation to imprisonment for eight years and for the unlawful killing of Mrs Alchin to imprisonment for fourteen years with a non-parole period of nine years expiring on 25 March 2011.

On appeal, the appellants submitted that the trial Judge erred in law in not directing verdicts of acquittal on all counts at the close of the Crown case on the basis that there was no evidence that the conduct of the appellants caused the death of Mrs Alchin. It was also contended that his Honour erred in law in misdirecting and/or failing to direct the jury adequately or properly in respect of murder, manslaughter, the legal duty to rescue, causation and joint enterprise. Other grounds of appeal relied on by the appellants included that the verdicts of the jury on all counts were unreasonable and that the sentences imposed were excessive.

Held:

Causation – the attribution of casual responsibility

1. The basic proposition relating to causation in homicide is that an accused’s conduct, whether by act or omission, must contribute significantly to the death of the victim. It need not be the sole, direct or immediate cause of the death.

Royall v The Queen

2. It was clear enough that Mrs Alchin’s death would not have occurred but for the omission on the part of the appellants to remove her from danger after the 000 call. It was also clear that, had the operator passed on the call as she should have, Mrs Alchin would have been rescued and would not have died. It was a matter for the jury whether, in these circumstances, inaction by the appellants should be seen as having significantly contributed to Mrs Alchin’s death. It was an error by the trial Judge not to leave that question to the jury.

3. However, on the facts of this case, there was no reasonable prospect that the jury would fail to find that the appellants’ omission caused Mrs Alchin’s death. It follows that the error did not lead to a miscarriage of justice and no appeal lies on this account.

Refusal to direct verdicts of acquittal

4. The applications made for directed verdicts of acquittal at the conclusion of the Crown case were made on the narrow basis that there was no evidence that the conduct of the appellants caused Mrs Alchin’s death. However, there was evidence of that element in the Crown case and indeed, there was no reasonable prospect that the jury, properly directed, might have found otherwise. The trial Judge’s decision to refuse the applications was correct.

Directions on murder and manslaughter

5. There can be no doubt that in the summing up, both orally and in the written directions and in the written questions the trial Judge adequately distinguished between the forms of homicide which were relevant, namely, manslaughter by criminal negligence and murder.

6. It was made clear to the jury that the omission to act was not by itself sufficient to constitute murder. There had to be an accompanying relevant mental state, that is, that the accused fully realised at the time of the omission that the probable consequence would be Mrs Alchin’s death. The relevant distinctions between murder and manslaughter were clearly stated by the trial Judge.

Directions on joint enterprise

7. No coherent argument was put by counsel for the appellants which suggested any error in the trial Judge’s summing up in relation to joint enterprise.

Whether verdicts unreasonable

8. Section 6(1) of the Criminal Appeal Act 1912 provides that the verdict of a jury may be set aside on the ground that it is unreasonable or cannot be supported, having regard to the evidence. Accordingly, this Court was required to undertake an independent examination of the evidence in order to determine whether the jury, acting reasonably, should have entertained a reasonable doubt as to the guilt of the accused.

9. The evidence was sufficient to support the verdict against each appellant that on or about 6 January 2001, in circumstances of aggravation, they broke and entered Mrs Alchin’s dwelling and there committed a serious indictable offence, namely, whilst in company with each other robbing her of her money and, at the time of committing such offence, depriving her of her liberty.

10. However, there was one crucial matter which gave rise to a doubt about whether the appellants were guilty of murder for reason that they caused Mrs Alchin’s death by an act or omission done or omitted with reckless indifference to human life. In order to convict the appellants for murder, the jury had at least to be satisfied beyond reasonable doubt that, in the time that passed after the 000 call was made and before Mrs Alchin died, they became aware that she had not been, and would not be, rescued and thereby fully realised that she would probably die.

11. The possibility that Mrs Alchin had not been rescued had to be weighed against the high probability, amounting to virtual certainty, that the 000 call would be acted upon. The likelihood that the operator would forget or otherwise fail to communicate such a call to the police was extremely remote.

12. The possibilities concerning the belief of the appellants as to what had happened to Mrs Alchin, which might flow from lack of publicity in the media or information from other members of the family, were highly speculative and amounted to little more than suspicion. There was no direct evidence to support a finding that the appellants were aware that Mrs Alchin had not been rescued. Even if it could be inferred beyond reasonable doubt that the appellants realised by 15 or 16 January that Mrs Alchin had not been rescued, it could not be concluded that she was then alive.

13. It follows that it was not open to the jury to conclude beyond reasonable doubt that, at any time before she died, the appellants fully realised that Mrs Alchin would die unless they rescued her. Accordingly, the conviction of each appellant of murder should be quashed.

14. The convictions for aggravated robbery stand.

The sentences

15. The trial Judge’s finding on sentencing that the appellants realised after twenty-four hours that the 000 call was ineffective and yet still left Mrs Alchin bound and disabled, knowing she would probably not be rescued in time, was regarded by his Honour as a serious aggravating feature of the offence of aggravated breaking entering and stealing. Given the findings of this Court, that the jury was not entitled to be satisfied beyond reasonable doubt that the appellants realised before Mrs Alchin died that she had not been rescued and would probably die, this finding on sentencing could not stand; s6(3) Criminal Appeal Act.

16. It will be necessary to hear submissions on re-sentencing the appellants for the offence of aggravated breaking and entering.

Whether there should be a new trial on the alternative count of manslaughter

17. Section 7(2) of the Criminal Appeal Act provides that where an appellant has been convicted of an offence, and the jury could on the indictment have found the appellant guilty of some other offence, the Court may, instead of allowing or dismissing the appeal, substitute for the verdict found by the jury a verdict of guilty of the other offence.

18. The Court sought written submissions from the parties as to whether it would be appropriate to exercise the power under s7(2). The appellants submitted that there should be a new trial; the Crown did not ask the Court to substitute a verdict of manslaughter. The parties did not, of course, have the benefit of this judgment when making these submissions.

19. In the circumstances, the Court has formed the view that it should order that the verdicts of murder be quashed and that there should be new trials on the charge of manslaughter but that the Crown will have liberty to apply for an order substituting a verdict of manslaughter in relation to either or both appellants in lieu of the order for a new trial, provided such leave is exercised within 28 days from the date of this judgment.

Legislation cited:

Crimes Act

1900

Criminal Appeal Act

1912

Cases cited:

[1981] WAR 286; (1980) 2 A Crim R 157

(1997) 191 CLR 439

(1993) 61 SASR 542

(1994) 181 CLR 487

(1907) 113 NW 1128

(1985) 156 CLR 464

[1980] 2 QB 532 (Court of Appeal); [1983] 2 AC 175 (House of Lords)

(1988) 14 NSWLR 226;

(1990) 172 CLR 378

(1988) 34 A Crim R 334

ORDERS

1. Appeals allowed in part;

2. In the case of each appellant, quash the verdict of guilty of murder;

3. There be a new trial of each appellant upon the charge of manslaughter;

4. Provided that Order 3 is subject to the condition that the Crown has liberty to apply within 28 days for orders under s7(2) of the Criminal Appeal Act 1912 substituting verdicts of guilty of manslaughter, failing which, the order is to take effect;

5. Grant leave to appeal against the sentences imposed on each appellant for aggravated breaking and entering and committing a serious indictable offence and set aside those sentences;

6. Direct that the proceedings be listed before the Registrar for directions as to the filing of further written submissions and to fix a further hearing for resentencing before this Court.

**********

2003/3228 (60327/03)
2003/3044 (60326/03)

Sheller JA
Sperling J
Adams J

Friday, 10 September 2004

Regina v Ian Craig Styman

Regina v Peter David Taber

Judgment

The Court :

Introduction

1 On Friday, 19 January 2001, Mrs Joy Golbie Alchin was found dead in her house at 23 Spies Avenue, Greenwell Point by Phillip George Reeves, who with his wife, Sheila MacGillivray Reeves, was the proprietor of a service station in the Greenwell Point area. Mrs Alchin was lying face down on a mattress on her bedroom floor. Her ankles were tied together with grey duct tape and four black cable ties, two around each ankle, with one from each pair tied through the other to secure the ankles together. The wrists were tied in a similar way, though more tightly than the ankles. There were two cable ties around the left wrist, one looped through the other. There was a pair of underpants folded to form a wad across Mrs Alchin’s mouth, which had been covered by a pillowcase over her head. There was duct tape wound tightly around her mouth, lower jaw and neck. It was the Crown case that the appellant, Peter David Taber, the appellant, Ian Craig Styman and Shannon Styman broke into Mrs Alchin’s house in the early hours of 7 January 2001, bound and gagged her, robbed her of over $23,000 in cash and then abandoned her.

Indictment and trial

2 On 9 September 2002, Taber, Ian Styman and Shannon Styman were jointly indicted on charges: firstly, that between 5 and 19 January 2001 they murdered Joy Golbie Alchin; secondly, that on or about 6 January 2001 in circumstances of aggravation they broke and entered the dwelling of Joy Golbie Alchin situated at Spies Road and there committed a serious indictable offence, namely, whilst in company with each other did rob her of her money and at the time of committing such offence did deprive her of her liberty; and, thirdly, in the alternative to count 2, that on or about 6 January 2001 they entered the dwelling house of Joy Golbie Alchin with intent to commit a serious indictable offence, namely, to steal her property and at the time of committing such offence knew that there was a person in the dwelling house.

3 For the charge of murder the Crown relied upon that part of s18(1)(a) of the Crimes Act 1900 which provides that murder shall be taken to have been committed where the act of the accused, or thing by him or her omitted to be done, causing the death charged, “was done or omitted with reckless indifference to human life”.

4 In R v Crabbe (1985) 156 CLR 464 the High Court in a joint judgment of five members, after referring to some differences of opinion in the Court as to whether the knowledge which an accused person must possess in order to render him or her guilty of murder when an actual intent to kill or to do grievous bodily harm is lacking, must be a knowledge of the probability that the act will cause death or grievous bodily harm or whether knowledge of a possibility is enough, said at 469:

“The conclusion that a person is guilty of murder if he commits a fatal act knowing that it will probably cause death or grievous bodily harm but (absent an intention to kill or do grievous bodily harm) is not guilty of murder if he knew only that his act might possibly cause death or grievous bodily harm is not only supported by a preponderance of authority but is sound in principle. The conduct of a person who does an act, knowing that death or grievous bodily harm is a probable consequence, can naturally be regarded for the purposes of the criminal law as just as blameworthy as the conduct of one who does an act intended to kill or to do grievous bodily harm. Indeed, on one view, a person who does an act knowing its probable consequences may be regarded as having intended those consequences to occur.”

5 The trial began on 2 September 2002 before Barr J and a jury. The appellants pleaded not guilty to all charges. On 3 September 2002, Shannon Styman pleaded guilty to the second count on the indictment but maintained his plea of not guilty to the other counts. The Crown case was that each accused committed the offences charged jointly, with the others, in a criminal enterprise. Shannon Styman’s plea of guilty on the second count subsumed the third alternative count so that he went to trial on the first and fourth counts alone. Taber and Ian Styman were convicted on the first and second counts. In respect of the first count, Shannon Styman was acquitted of murder but convicted of manslaughter. All three were acquitted on the fourth charge of aggravated sexual intercourse.

Summary of the Crown case

6 The Crown tendered an autopsy report prepared by a pathologist, Dr Peter Graham Bradhurst. According to that report, Mrs Alchin had died between 1 pm on 5 January 2001 and 12 pm on 19 January 2001, “but more likely some time between the 16th and 18th January 2001”. (The uncertainty about the date of death has some significance and is further discussed below.) Because the pillowcase was fairly loose over Mrs Alchin’s head and because she had not sustained any immediately life-threatening injury, it was possible that she had survived for a reasonable period of time even though she had been bound and gagged. The immediate cause of death was smothering and dehydration associated with restraint. The smothering was described as an obstruction to the airway from the underwear placed over Mrs Alchin’s mouth and held firmly with the duct tape. The fabric of the pillowcase would have interfered with the airflow through the pillowcase and into her lungs. Her nasal passage was not blocked. In the position she was in, any gaps for airway would have been blocked, though she may not have been in that position continuously. The dominant cause of death was dehydration though the smothering would have come at the end of her life when she was comatose and not able to remove the pillowcase from the front of her face. In her weakened state, she would have had a reduced ability to breathe and the pillowcase would have caused a lack of airflow when contaminated by the fluids of her nose and mouth.

7 Mrs Alchin had received a blow to the left side of her mouth causing two lacerations. These lacerations on Mrs Alchin’s mouth were consistent with her having fallen off the bed and hitting her face. Abrasions to her buttocks were consistent with her having wriggled herself across the floor by moving her feet and back and shoulders.

8 A fingerprint expert found no identifiable prints on the surrounding doorframes of Mrs Alchin’s house nor on selected items in the house nor on the duct tape wrapped around her ankles, wrists and mouth.

9 At 4.54 am on 7 January 2001, Ian Styman made a 000 telephone call from a pay phone on Greenwell Point Road, Nowra East. In this call the following exchange took place:

10 The call was taken by Anne Maher, a communications operator at the Police Communications Centre (VKG Warilla) and should have been entered on to a Computerised Incidence Dispatch System (CIDS). This would have caused the message to be electronically forwarded to a radio operator who would then broadcast the job. In this case, no CIDS message was entered. Accordingly, the message went no further than Ms Maher and was not acted upon.

11 We now return to the evidence concerning the date of Mrs Alchin’s death. It is clear that she died between 7 and 19 January 2001 and there can be little doubt that she lived for some days after 7 January. The question is, of course, how long. The Opinion of Dr Bradhurst as stated in his autopsy report was that Mrs Alchin “died some time between…5 January 2001 and…19 January 2001 but more likely some time between 16 and 18 January 2001” (emphasis added). That this is expressed in less than certain terms is unremarkable, but it certainly could not justify a conclusion beyond reasonable doubt that death occurred no earlier than 16 January. We mention the standard of proof because it was crucial to the Crown’s case on murder that the evidence established both that the appellants realized that it was probable that Mrs Alchin would die and that that realization preceded her death, for the obvious reason that the criminal conduct was the omission to rescue her. Each of these facts had to be proved beyond reasonable doubt. This did not mean that the actual date of death had to be proved to this standard but it did mean, in our view, that it was incumbent upon the Crown to prove that the realization of the probability of death (if established) must have occurred prior to that date, whenever it was. In other words, on the assumption that the appellants indeed realized that Mrs Alchin had not been rescued, if it was reasonably possible that they did not come to this realization until after she had died, they must be acquitted of her murder. It is also obvious that the date of death (after the first few days) was not a matter of common sense: the jury could go no further than the expert opinion, in the absence of any other relevant evidence on the point. The cause of death did not indicate its date. Dr Bradhurst, the forensic pathologist who conducted the autopsy stated in his tendered report, under the heading Estimation of time of death:

most likely

Because the pillow slip was fairly loosely over her head and because she had not sustained any immediately life-threatening injury, it is quite possible she survived for a reasonable period of time even though she had been bound and gagged.”

12 Dr Bradhurst was not cross-examined about the difference, if any, he sought to convey by the phrases “more likely” in the Opinion and “most likely” in the Estimation. It was probably a distinction without a difference. In cross-examination, Dr Bradhurst agreed that, in his opinion the deceased died “very close to the time she was discovered”, based on the degree of decomposition. He agreed that the fact that a blanket wet with urine was found adjacent to her body confirmed the conclusion that the deceased “passed away close, very close” to the time of discovery. He was not asked to interpret this time frame in terms of days. However, in speaking of bruises, he said that he used the word “recent” in a very liberal sense. During further cross-examination Dr Bradhurst said that 16 January was probably but “definitely not necessarily” the earliest date of death (emphasis added). In re-examination, Dr Bradhurst confirmed that his opinion remained as he had stated it in the autopsy report, namely, “that it is more likely [that death occurred] sometime between 16 and 18 January 2001” than earlier. For completeness, we should mention that Dr Ryan (the Government Medical Officer) who was present when Mrs Alchin’s body was found, estimated that she had been dead for some 72 hours. That Mrs Alchin died no earlier than 16 January was, on the expert evidence, no more than a mere probability. The evidence (set out below) of Mrs Alchin’s neighbour Mrs Batchelor as to an offensive smell apparently coming from Mrs Alchin’s house being evident four or five days before discovery of her body was unknown to Dr Bradhurst and was unfortunately not brought to his attention during his evidence. Mrs Batchelor’s evidence raises the reasonable possibility that Mrs Alchin died at least six or seven days before discovery, namely 12 or 13 January, allowing not only for a substantial degree of putrefaction but also time for the smell to reach Mrs Batchelor’s house, bearing in mind that the external windows and doors of Mrs Alchin’s house were closed.

13 Thus, the direction to the jury that Mrs Alchin “continued to live for a further nine to eleven days” as a given and established fact, with respect, significantly overstated the actual effect of the expert evidence which was all one way. The jury were, indeed, reminded of the evidence that “16th to the 18th January is the time at which Dr Bradhurst thinks that the deceased most probably died” but this was immediately followed by the direction “you would have to regard the 16th January…as the date of death, because you have to treat the matter conservatively”. No point was taken as to this question either at the trial or in this appeal. We mention it merely as showing that, in dealing with the element of the appellants’ realization of the probability of death, the jury very likely considered the issue upon a mistaken view of the evidence. It is also material to the ground of appeal requiring this Court to consider whether the verdict of the jury was unreasonable.

14 In the result, no conclusion was capable of being drawn beyond probability, though perhaps high probability, that Mrs Alchin had died by 16 January. How long before that date she may have died must be speculative, increasing in certainty no doubt as the period extended backward.

15 Mrs Alchin regularly placed grocery orders by telephone with Mr and Mrs Reeves each Wednesday. The orders were delivered to Mrs Alchin’s home on Friday afternoons by one or other of the Reeves. Their last contact with Mrs Alchin occurred on 24 December 2000, when she called to say that there had been an attempted break-in the night before and she wanted some padlocks. They were delivered on 5 January, which was the last occasion that Mrs Reeves saw Mrs Alchin. No order was placed after 5 January 2001. Eventually this caused Mr and Mrs Reeves concern. On 19 January 2001, Mr Reeves went to Mrs Alchin’s house. He climbed over the front gate and knocked repeatedly on the front door. He then went around the side and climbed over the side gate. Both gates were padlocked. When he went around to the back of the house he noticed that the outside back light was on and the back door was half open. There was also a locked security door, on which was a note written by David Geoffrey Bennett.

16 In early January 2001, Mr Bennett had met Mrs Alchin at her home and at her request measured the back door for the installation of a new security door, which he installed on Monday, 8 January 2001. Before going to the premises on that day he had rung and received no answer. When he attended he found the back door open and ajar. He called out but got no response and proceeded to fit the security door. He then locked it and left a note attached to the bars of the back door stating that he had left the key with a neighbour. Mr Reeves retrieved that key from that neighbour and used it to unlock the security door and enter Mrs Alchin’s house. After finding her body, he called the police.

17 On about 19 December 2000, Mrs Alchin had told an acquaintance, Graeme Saville Cox, that someone had tried to break into her house. She mentioned that things had been moved around in her shed. In late December or early January, Mrs Alchin rang Mr Cox and said that someone had tried to get in her front door with a piece of plastic. He advised her to install a security door for her back door and organised this. Around Christmas 2000, Mrs Alchin told another acquaintance that someone had tried to break into her house and that she was going to install the security door. On Christmas Eve 2000, Mrs Alchin told Mr and Mrs Reeves that her house had been the subject of an attempted burglary. She had been asleep when she heard a noise. She turned on her light and scared off the intruder. She said she was worried about security and placed an order for padlocks. Mrs Reeves delivered the padlocks to Mrs Alchin and was told that a piece of plastic had been used to get in her front door. Mrs Reeves saw it in Mrs Alchin’s hands. It was the size of a credit card.

18 On 24 December 2000, Constable Olivia Shephard attended Mrs Alchin’s house. Mrs Alchin said that her back shed had been broken into and something was wedged in her front door. Constable Shephard saw a white plastic card jammed in the door. Mrs Alchin opened the front door. Constable Shephard removed the card. There were no jemmy marks on the door. Mrs Alchin was advised to keep her front security door locked. Mrs Alchin told Constable Shephard that the key was broken off inside it. On 28 December 2000, Murray Aston, a locksmith, came to Mrs Alchin’s house and changed the lock on her front security door. Mrs Alchin believed that someone had a key. At the same time, she told Mr Aston that she wanted a new rear door. She paid Mr Aston in cash with pre- polymer banknotes.

19 Several people visited Mrs Alchin’s house in January 2001. On 5 January, Barry Milsim Irving, an electrician, went there and saw that her front mailbox had been broken off. On 8 January, Kevin Stuart Garrett went to read Mrs Alchin’s meter. He usually entered through the front gate but on this occasion he found the gate had a padlock. On 12 January, George Francis Cross from the Greenwell Point Post Office delivered mail to the house. He saw Mrs Alchin from time to time on his run and had got to know her. On occasions, she would give him a cheque and a bill for payment, which he would do for her and return the next day with a receipt. He noticed a padlock on Mrs Alchin’s front gate for the first time. Her mailbox was not outside as it usually was. Her practice was to take it in at night and bring it back outside in the mornings.

20 Mr and Mrs Batchelor, who had lived in Greenwell Point for well over thirty years, had been Mrs Alchin’s neighbour for about three years before her death. She said that she never saw Mrs Alchin except for glimpses through the palings of the back fence when she was hanging out her washing. She only spoke to her once, a telephone conversation, when Mrs Alchin offered her some grapefruit. About four or five days before Mrs Alchin’s body was found Mrs Batchelor noticed a very bad smell – she described as like a dead rat – that she thought at first came from her own laundry or toilet, but which obviously came from Mrs Alchin’s house. For obvious reasons, this evidence strongly suggested that Mrs Alchin had died some days before 14 or 15 January.

21 Mrs Rutter, who was born in 1959, gave evidence that her mother moved to her house in Spies Avenue, Greenwell Point in about 1977 or 1978 and that she went to live there with her in 1982, having previously lived with her father for some years. Mrs Alchin had three sisters, Cheryl Ravell, Margaret Jones and Marie Gale and three brothers, Gordon (who was deceased), Allan and Kevin Ravell. Mrs Alchin enjoyed good health. She would go out from time to time to visit friends and go shopping. However, Mrs Alchin did not drive and did not like to go out on her own. She was security conscious and would not open the door to strangers. Mrs Rutter did not suggest that, aside from the fact that her mother liked to have company when she went out, she was a recluse. In 1989 a dispute arose between them and Mrs Rutter did not see her mother again from that time. However, it appears that she kept in contact by telephone. Sometime in the late 1990’s they fell out again. The two last spoke in October 2000 but the evidence does not otherwise disclose the frequency of their contact. Mrs Rutter was not asked and did not give evidence about any communications, direct or indirect, with the appellants.

22 Another sister, Margaret Jones, said that she had had contact with Mrs Alchin until 1997, when they fell out. Mrs Jones would visit Mrs Alchin and take her shopping once or twice a fortnight. Mrs Alchin always had money in cash. Several years earlier, Mrs Jones was with Mrs Alchin when Mrs Alchin withdrew $7,000 cash in old $100 notes from a bank. Mr and Mrs Reeves gave evidence that when Mrs Alchin paid for groceries she would usually pay in cash with $50 notes. In the past, she had also paid with old (pre-polymer) $100 notes. She would go to her bedroom to get the money. Alan Walter Ball, the owner of the Greenwell Point Newsagency and General Store, gave evidence that he delivered newspapers to Mrs Alchin’s house. Once a month she would pay him in cash at her front door. The last delivery was on 17 January 2001.

23 Mr Cox was a friend of Mrs Alchin, having met her through a pastor of the Seventh Day Adventist Church (of which she was an adherent) who got to know Mrs Alchin well through his work with Meals on Wheels. Mr Cox had agreed to her request to drive her around when she bought a car, which he also used. Amongst other things, he would speak with Mrs Alchin on the telephone, visit for a cup of tea and take her shopping, though this ceased when one of her widowed neighbours, a Mr Knowles, took this on. Mr Cox understood that Mrs Alchin and Mr Knowles became good friends and commenced to see each other regularly. Mr Cox and Mrs Alchin continued to speak together by telephone, one occasion being on 19 December when Mrs Alchin called to complain that she thought someone had attempted to break into her house through the back door; they also spoke in early January 2001, when she told him that someone had been trying to get through the front door with a piece of plastic and that she had called the police. The last time they spoke was sometime later when Mrs Alchin asked Mr Cox to go over and do some work for her in her yard but some personal matters intervened and he did not go. In the week before 20 January 2001, however, Mr Cox called her from time to time, but without success and, thinking that she may have hurt herself, had decided to investigate on 20 January but was then told by a police constable he knew that Mrs Alchin’s body had just been found. Mr Cox had seen Mrs Alchin carrying a lot of money when he took her shopping. Once she bought a motor vehicle in a private sale for $2,000. She went to her bedroom and returned with the money in $100 notes. Rodney James Knowles gave evidence that he drove Mrs Alchin to various places on several occasions and saw her make purchases with old $50 notes. He stated that there was no physical relationship between them.

24 Mrs Gale, who was living in Queensland, had last seen her sister, Mrs Alchin at the end of November 1998 and last spoke to her towards the end of 2000. She was called principally to give evidence about a conversation after Mrs Alchin’s death with members of the family, including Mr Taber, about old banknotes and did not give any more specific evidence about her contact with her sister.

25 Cheryle Ravell, Mrs Alchin’s youngest sister, was living in Greenwell Point at the time of Mrs Alchin’s death. She confirmed the other evidence about her sister’s habits. She said that they were not close because they did not see each other “very often”. At about Christmas 1999, they fell out over some shopping done by Mrs Ravell for Mrs Alchin and she stopped seeing and talking to her in about April the following year. One of Mrs Ravell’s daughters, Melinda took over doing the grocery shopping for her. Another of Mrs Ravell’s daughters, Leonie, had been living with the appellant Taber for four or five months. She was called by the Crown to give evidence, inter alia, about Taber’s whereabouts on the night of 6 January 2001. She was not asked and gave no evidence about her relationship with Mrs Alchin, or Mrs Alchin’s habits of life or relations with the rest of the family or, for that matter, any other persons, nor whether she had said anything to Taber about these matters.

26 Melinda Ravell said that she would visit Mrs Alchin perhaps once or twice a week and did her shopping for her from time to time. Mrs Alchin had lent money to Cheryle and to Melinda Ravell. These were in cash amounts of $22,000, $3,000 and $22,000 on separate occasions in late 1999. Mrs Alchin handed the money over in her house on each occasion in a paper bag. Most of the money comprised old $100 notes. Mrs Alchin wanted to be repaid in cash. A dispute arose in relation to the repayment of these loans. This caused Mrs Alchin to contact a solicitor in the latter half of 2000. Eventually she was repaid. The evidence did not suggest, however, that Melinda’s contact with Mrs Alchin ceased, although she had not attempted to contact her during the relevant time.

27 A Mr Garrett attended Mrs Alchin’s premises on 11 January 2001 to take a meter reading. Mr Ball owned the Greenwell Point Newsagency and General Store, where Mrs Alchin had a standing order for a newspaper to be delivered on Wednesdays and Sundays and a magazine monthly. Mr Ball made these deliveries by throwing them over the fence early in the morning. Once a month he went to the door to be paid, the last of these occasions being 17 January 2001.

28 After Mrs Alchin’s funeral, Mrs Rutter went to her house for a clean up. While there Mrs Alchin’s brother-in-law, Richard Stanley Jones, found a key within the cushions of a chair situated near the back door. The key fitted the lock on the back door.

29 Detective Senior Constable Paul Andrew Johnstone received a telephone call from Mr Reeves at 12.20 pm on 19 January 2001. Mr Reeves said he had found Mrs Alchin dead in her house. At 12.55 pm, Johnstone went to Mrs Alchin’s house with Senior Constable Olana Lillian Jeffery, who maintained a crime scene log, and Sergeant Wesley John Hanrahan, who kept the premises secure. Having entered the premises over the padlocked front gate where they saw several wrapped newspapers on the front lawn, they climbed over another padlocked gate at the side of the house and walked to the back door. Johnstone unlocked the security door with a key he received from Mr Reeves and opened the back door, which was closed but not locked. He saw wrapped newspaper on the floor near the back door. There were rotting tomatoes in the kitchen sink. The front door was shut. Mrs Alchin’s bedroom was in a state of disarray with clothing and bed linen scattered over the floor. Wardrobe doors were opened and their contents scattered. A later inspection by Detective Sergeant Wayne Benney showed no sign of any ransacking in any of the rooms except the bedroom. Benney gave evidence that the cable ties were tied to Mrs Alchin in such a way that they would not break when pulled and would have to be cut. On the mattress there were two bed sheets knotted together.

30 On 21 January 2001, Johnstone took part in a search with Benney at Mrs Alchin’s house. In her bedroom wardrobe, Johnstone located a brown leather handbag containing two small purses, one with $156.45 in notes and coins and the other with $250, which included two pre-polymer $100 notes. A broken black cable tie was found on the bedroom floor. A later external search revealed no apparent signs of forced entry.

31 On 24 January 2001 at 4.50 pm, police went to the appellant Taber’s house at 211 Old Southern Road, Worrigee and executed a search warrant. Amongst those present in the house were, Taber, and his de facto wife, Leonie Kaye Ravell. Also present were Sharon Rose Herne and her daughters, Kylie Rose Herne and Meegan Elizabeth Herne. They were required to go outside and were searched by Detective Jeffrey, who said the search took less than ten minutes. Their car was also searched and following this search they left. Mrs Herne gave evidence that the elapsed time between the police arriving and her and her daughters leaving the house was about an hour. Constable Stephen Gregory Hegarty said in evidence that he saw Mrs Herne and her two children leave the house and go out to the front. They left about five minutes after the search of the house began.

32 The search of Taber’s house began at about 5.15 pm. The police found in the main bedroom two new rolls of grey duct tape, several shopping receipts, including one from K-Mart dated 8 January 2001 in the amount of $1,737.80; in the lounge room a small clear plastic bag containing a quantity of black cable ties; in the rear yard a piece of grey duct tape on the lawn and in the garage a backpack containing gloves and masks. Taber said that the gloves were his mother’s as she was a nurses’ aid. The Crown placed no reliance on the finding of the masks.

33 When the search moved to the front of the house, Taber handed a pre-polymer $100 note to one of the detectives.

34 The police searched a panel van at the front of the house and a white Ford Ute. Detective Senior Constable Jeffrey Allan Bennett gave evidence that he assisted in searching the utility and found two lengths of scrunched up used grey duct tape in the rear tray. Benney saw these two items in the rear of the utility and took photographs. The search was videotaped by Senior Constable Adam James Asplin. Bennett was shown the videoed footage during cross-examination. He agreed that it showed Detective Senior Constable Ivor Davies, Senior Constable James Gordon Littler and Constable Ray Thomas near the white ute. Littler pointed twice to the inside of the utility before Bennett approached it. Bennett said, after viewing this portion of the taped footage, that he made a mistake when he said that he had been the one who had found the scrunched up duct tape in the rear of the utility.

35 Hegarty’s evidence was that after he arrived at the house he secured the front yard and driveway. His evidence, which was corroborated by all other police officers present, was that the search was completed at 7.35 pm. He saw Bennett locate two scrunched up rolls of duct tape in the rear of the ute. He did not see anyone approach the utility prior to this. Hegarty was not visible on the videoed footage showing the search of the utility because he was behind the camera at this time and when cross-examined about whom he first saw find the scrunched up tape in the utility, he was adamant that it had been Bennett.

36 Davies gave evidence that he recalled seeing the duct tape in the back of the utility. He had made no earlier approach or search of the vehicle. He said that the duct tape was pointed out to him by other police. He did not see any officer pick it up. At first, Thomas said in evidence that he did not search the ute. In cross-examination he remembered that he did search it. He did not recall finding any duct tape in the utility. He agreed that the videotaped footage of the search showed him searching a panel van and then moving over to the utility where he stood near Littler and motioned Davies to the back of the utility before Littler pointed twice towards the back of the vehicle. He could not recall if he had been pointing out the two rolls of scrunched up duct tape.

37 Littler gave evidence, that in the company of Thomas, he saw duct tape in the back of the utility after he had walked to the side of it. He could not recall pointing it out but agreed that he was shown to do so on the videoed tape. He agreed in cross-examination that he made no mention about seeing duct tape in the utility when he made his statement. This was because he forgot.

38 The evidence of Bennett, Hegarty and Littler was that after the scrunched up rolls of duct tape were found in the back of the utility, they were recorded on video tape and Detective Constable Jason Charles Stevenson, the allocated exhibit officer, took possession of them, recorded what had been found, and placed them in a brown paper bag which he then sealed. Stevenson confirmed in evidence that he did this and that the scrunched up rolls of duct tape were logged at 7.09 pm.

39 The videotaped footage of the search showed Stevenson placing the duct tape found in the rear yard into a brown paper bag. There was no videotaped footage of the two scrunched rolls of used duct tape found in the rear of the utility. Stevenson agreed in cross-examination that there was no video taped footage of him picking up these two rolls of duct tape. Asplin, in cross-examination, acknowledged that after Littler had pointed to the utility the camera then focused on the two scrunched up rolls of duct tape. He did not recall seeing any officer place these two rolls of duct tape into a paper bag and he agreed there was no videotaped footage of this happening. Benney’s evidence was that Stevenson sealed the two pieces of duct tape in a brown paper bag. In cross-examination he said that when he had earlier given evidence he had made a mistake in saying that the two pieces of duct tape went into separate bags.

40 Stevenson’s evidence was that the rolls of duct tape were not located in his presence as he was placing exhibits in the back of a police vehicle at the time. He was able to see the search of the utility taking place. In his statement he said that Bennett had located these items. On the property exhibit form he had written that Bennett found the two rolls of scrunched up tape. He explained that this was because Bennett had identified them to him.

41 Detective Senior Constable Kevin Alan Cody gave evidence that he was present while the utility was searched. Bennett found two pieces of scrunched up pieces of duct tape in the rear of the utility. In cross-examination, after watching the video footage of Littler pointing to the utility he said he had not actually seen Bennett locate the tape. He had relied on the log of Stevenson to prepare his statement when he had said that Bennett had located the tape. In cross-examination, he said that the duct tape was obvious once one looked into the vehicle.

42 In cross-examination, Stevenson agreed that he had verified the property exhibit without first having Taber check and sign it. Davies also gave evidence that he had questioned Taber at the scene about the $100 note handed to him, the backpack containing the gloves and masks and the receipts found by the police but had no recollection of asking Taber about the scrunched up rolls of duct tape found in the utility.

43 The cross-examination of the police officers who undertook the search was to the effect that the two scrunched up rolls of duct tape found in the back of the white utility were planted by police and were expected to be found. This was denied.

44 The police officers present during the search of Taber’s house were cross-examined about an occasion during the search when the police were in the bedroom and Cody said: “Jason, those girls right to go? We’ve searched the car. They have a backpack in the lounge.” After this Davies and Stevenson were seen on the videotaped footage of the search to leave the room. Asplin, Littler and Thomas could not recall the two officers leaving the room. They acknowledged the videotaped footage showed them doing so but they could not assist as to where they went. Hegarty, who was securing the front yard, gave evidence that he did not recall seeing Davies or Stevenson come out to the utility before the utility was searched. Bennett’s evidence was that as far as he was aware there was no other time the utility was searched other than the time about which he gave evidence. Cody gave evidence that he did not see any other officer approach that utility before it was searched and the scrunched up rolls of duct tape were found. For most of the time he was in the front yard. His role was to assist Davies with interviewing Taber.

45 Stevenson said in cross-examination that he had left the bedroom and gone into the lounge room or hallway to write up the exhibits and secure them. That was where they were stored. In re-examination he said that he believed that he gave the backpack in the lounge room to a police officer to return to Mrs Herne and her daughters who then left. He did not recall leaving with another police officer nor anyone saying anything to him about searching a car. He did not take part in the search of any car. His evidence was that what Cody was referring to was the search of Mrs Herne’s car which was parked at the front.

46 Cody gave evidence that he and another officer searched Mrs Herne’s car at the front before they were allowed to leave. The question asked by him in the bedroom was made after his search of that car and after Meegan Herne’s backpack was searched. He did not know where Stevenson and Davies went when they left the room.

47 Mrs Herne’s evidence was that while she was at the front of the house she did not see any police officer search the utility. She was pre-occupied with the police who were searching her car. At that time, there were several police outside the house.

48 Meegan Herne gave evidence that up to half an hour after the police arrived, when she was at the front of the house being searched, she turned and saw a man with a grey ball of tape in his left hand. She described him as being in his early to mid thirties, six feet tall, with short dark hair, not fat or skinny, with trousers and a long sleeved shirt. She saw him standing next to Taber in the middle of the front yard close to the utility. She was about ten feet away from him at the time. After seeing this she and her sister and mother left.

49 The police who attended at Taber’s house for the search were all questioned about the description given by Meegan Herne of the man she had seen holding a grey ball of tape. Their evidence was generally either that they could not recall seeing such an officer there as described by her or they recalled there were officers who matched the physical descriptions but not the clothing.

50 Cody gave evidence that he was not holding the ball of tape. He could only recall that he and Davies were wearing trousers and long sleeved shirts. Hogan gave evidence that after escorting Leonie Ravell out of the house he did not search any vehicle and was not holding a ball of tape. His evidence was that the description given by Meegan Herne matched him and Littler. Hegarty said that he had not seen any duct tape before the utility was searched nor any officer searching it. While the Hernes were present he did not see any police officer in the vicinity of the utility. He did not see any officer holding a ball of duct tape. Johnstone gave evidence that he did not go near the white utility and did not place any duct tape in the back of that vehicle. He did not see any officer holding duct tape and standing near it. Senior Constable Anthony Peter Hyndes recalled seeing a utility at the front when he took part in the search of Mrs Herne’s car. He did not approach the utility and did not see any other officer approach it. He did not see any officer holding duct tape.

51 Constable Paul Edward McCann gave evidence that he remained in the front yard while the house was being searched to secure the premises. After the search was completed he went into the house to help seize the exhibits. He did not look inside the utility but he saw the video camera around while it was being searched. At no stage did he see an officer holding a piece of duct tape.

52 Detective Inspector Wayne George Hayes took photos of all police who attended the search and subsequently showed the photos to Meegan Herne. She was unable to say whether any of them were handling the duct tape. Hayes did not show the photos of Bennett because he was on leave and in any case had been wearing jeans and a T-shirt on the day of the search and was specifically excluded by Meegan Herne in her evidence. Inspector William Peter Carter, another officer present during the search, was bald and no photo of him was taken. He gave evidence that he was present at the search to ensure its integrity and fairness. He had seen Stevenson’s property exhibit form on the day of the search but he had not handled it nor read it in its entirety. Stevenson agreed he had not given this form to Carter for him to attest to the integrity of the search as an independent observer.

53 Carter completed a search warrant independent observer form and the search warrant procedures scene plan. The last item shown in these documents was a search of the carport at 6.51 pm. He said in cross-examination that he was still present when the panel van and utility were searched but agreed that he had made no reference to these searches in his statement. He did not recall if anything was found in the utility. He agreed that he was not visible on the videotaped footage when the utility was being searched. He was last seen on the videotaped footage when the carport was being searched. He denied he was not outside when the ute was searched and said he must have been with the cameraman. Stevenson in evidence said he believed Carter came out when the ute was searched and that Carter was present for the entire search. He could not explain why Carter was not visible on the videotaped footage. Davies gave evidence that he could not recall if Carter was around when the search was wrapped up.

54 Benney gave evidence that he took photographs of a broken black cable tie found by police on the carport floor in front of the boat and another black cable tie on the carport floor alongside the boat. He examined the packed cable ties found in the lounge room. The cable ties taken from Mrs Alchin and the broken cable tie found on the floor in Mrs Alchin’s bedroom were all examined and found to be 202mm in length. On 31 January Benney made a visual comparison of packaged cable ties from various outlets in the Nowra area and found there were matches with the cable ties found at Taber’s house in the carport and cable ties from K-Mart and Ison & Co in Nowra.

55 Benney also examined duct tapes found by police during the search of Taber’s house. He concluded that the duct tape found in the rear yard was not of the same type as the duct tape used on Mrs Alchin. The two new rolls of duct tape found in the bedroom were different to the two scrunched up rolls of tape found in the utility. Benney concluded that these two rolls of scrunched up tape had characteristics in common with the duct tape found on Mrs Alchin. The width was the same (48mm), the colour was the same and the tapes had no pattern on them.

56 Suzanne Maria Briese from Forensic Services, Australian Federal Police, prepared a report dated 8 May 2001. On 22 January 2001 she received several items for DNA testing including blood from Mrs Alchin, Taber, Ian Styman, Shannon Styman and Leonie Ravell. She also received the duct tapes found during the search of Taber’s house in the bedroom, utility and rear yard. These included item 30 described as two rolls of duct tape, item 29 described as pieces of duct tape marked item 1, which I take to be exhibit M, the two scrunched up rolls of duct tape found in the utility, and item 36, which was exhibit J, described as the duct tape found in the rear yard. Ms Briese’s report of 8 May 2001 suggested that DNA testing on item 29 produced no reported result.

57 David John Royds from Forensic Services, Australian Federal Police, conducted an examination of the duct tape removed from Mrs Alchin’s mouth, ankles, wrists and pillowcase as well as the duct tapes found during the search of Taber’s house in the bedroom, rear yard and ute, which became respectively items 5, 6 and 7 in the report. In his report dated 22 March 2001, item 7 was described as a brown paper bag, sealed and signed by Benney, and labelled in part “three pieces of duct tape located in the rear of M/V AAE-98R at premises, 211 Old Southern Road, South Nowra”. The number was the registered number of the ute. Mr Royd’s evidence was that when he received them the duct tapes were split into three pieces and were scrunched up. In his report Mr Royds stated the following conclusion:

“The physical and chemical properties of the tapes from the two loci (being from the body of Joy Alchin, and from the motor vehicle AAE-98R at 211 Old Southern Road, South Nowra) were similar. This means the two tapes could have a common source.

A mechanical fit was not established between tapes from these two loci.

In the absence of a data base that reflects the range of variation and physical and chemical properties in the overall population of ‘duct’ tapes, the evidential value of this observation is undetermined.

A small clump of coarse wool fibres impregnated with red brown granular material was observed on a section of tape, purportedly from M/V AAE-98R at 211 Old Southern Road, South Nowra. A sample of this stain and a sample of the stain from the pillow case, purportedly from the deceased, were handed to Dr Sutton for DNA testing. The findings of her work are the subject of another report.”

58 In his evidence, Mr Royds said that the wool was coarse and of a type that would be seen in carpets. A presumptive test for blood was undertaken, which came back positive, though this was not conclusive. The blood was microscopically examined and Mr Royds concluded that because the blood and fibres had mixed together, the blood was wet at the time it had come into contact with the fibres.

59 On 7 March 2001, Dr Julie-Anne Sutton received two samples. “One of these purportedly contained a sample from a pillow case associated with Mrs Alchin and the other contained a sample associated with tape from a vehicle. The proposition to be tested was: that the sample from the pillow case had the same DNA type as the sample from the tape from the vehicle.” In her report of 30 March 2001 Dr Sutton identified the first as item A and the second as item B. Her report was as follows:

EXAMINATION

2.1 The examination of each item was conducted at separate times, in separate batches and analysed on different genetic analysers.

2.2 Human blood was detected on items A and B.

2.3 Items A and B were examined using the polymerse chain reaction (PCR) method for the analysis of deoxyribonucleic acid (DNA). The DNA profiles obtained on items A and B were indistinguishable from each other at ten regions (loci) of the DNA. The results of DNA analysis from the items submitted are shown in Table 1 on page 3 of this report.

2.4 The point estimates for these profiles is one in 23.1 Billion in the general ACT population.

2.5 It can be stated with 95% confidence that the true frequency of the DNA profile as identified from both items A and B is between 1 in 13.6 Billion and 1 in 39.1 Billion in the general ACT population.

…

CONCLUSION

The human blood detected on “FC010573 complainant pillow case” (Item A) and “FCO10573 from tape FSO/168 29ii Vehicle” (Item B) could have come from the same individual. The evidential value of the observation is exceedingly high given the rarity of the profile obtained.”

60 The DNA profile of the two samples examined by Dr Sutton was identical to the DNA profile obtained by Ms Briese of Mrs Alchin’s blood as typed in her report using the profiler plus system. Ms Briese said in her evidence that when she examined the duct tape she had not seen any fibrous material.

61 Benney gave evidence that on 27 February 2001 after the scrunched up duct tape from the utility was first returned to Nowra police from Ms Briese, before they were sent for further analysis to Royds and Sutton, he undertook a visual examination of all the duct tapes removed from Mrs Alchin and from the search at 211 Old Southern Road, South Nowra. Some of the duct tape removed from Mrs Alchin had blood. Although he was examining all of the pieces of duct tape in proximity to each other they were on separate sheets and laid under one another. He conceded that despite his care to avoid contamination there was a possibility that there may have been a touching of the two pieces of tape. The items were put on a fresh piece of manila paper and he overlaid the paper to get them as close as he could without directly touching them. Although there was a possibility of this happening to his knowledge they had not touched at the ends. There was no possibility that they could have touched on top of each other. The examination took a couple of days and the room he conducted it in was kept secure. On 1 March 2001 he repackaged the duct tape from the utility into three separate bags.

62 Robert John Goetz, from the Department of Analytical Laboratories at Lidcombe, was called by the Crown by leave after all the accused had given evidence. He had examined the ends of the pieces of duct tape removed from Mrs Alchin and from the duct tape found by police in the utility. He examined ten areas on the duct tape found by police in the utility and DNA was recovered in five areas. Four were consistent with Mrs Alchin and an unknown individual. The appellants and Shannon Styman were all excluded.

63 Through the installation of lawfully obtained listening devices, police monitored conversations at Taber’s house and on Ian Styman’s mobile phone. The Crown relied on these audio tapes which were transcribed as showing a consciousness of guilt through various conversations suggesting a concern about the police investigation, lies about the money Taber and Ian Styman had in their possession and an apparent consciousness that the phones were tapped which caused a cautiousness in the conversations, some of which were preceded with “14” being said, which on the Crown case was a code to note that the conversation was being tapped. In one of these conversations, Taber was speaking to Leonie Ravell about police having taken two rolls of duct tape, but Taber made no reference to that duct tape not being his.

64 The Crown called Andrew Peake, who was a friend of Ian Styman, and through him Peake had met the appellant Taber. In early December 2000 he had been at the KFC in Nowra having lunch with Ian Styman between 12 noon and 2 pm. This was either on a Monday or Tuesday. Half an hour later, he followed Ian Styman as he drove on his motor bike to Taber’s house at 211 Old Southern Road. They stayed there for five or ten minutes. He then drove to Ian Styman’s house at Sanctuary Point where they stayed until about 5 or 5.30 pm. Peake was going to go out and get milk for Ian Styman’s wife, which he later did. Later, Peake and Ian Styman went to Taber’s house in Peake’s car. They were both wearing shorts and T-shirts. They stayed at Taber’s house for no more than half an hour. Ian Styman and Taber then got into Taber’s mother’s car (a white four door car) and Peake followed them to Taber’s mother’s house in Nowra. Peake was driving a red Ford Laser.

65 Ian Styman and Taber parked in the driveway and went into the house via the front. Peake waited outside and had a cigarette before walking into the house through the front door. He called out to the appellants, heard a voice from the back of the house and went there. He saw the appellants in a room, standing face to face, and one of them had his wrists tied up in black cable ties with his fists clenched and his hands in front of him. Peake’s evidence was that they were making sure that the person who was tied up could not get out of the cable ties. They then cut the ties off. Peake did not actually see the cable ties being removed.

66 Peake described the appellants as standing face to face and about a metre apart; “They were tied up at one time and when I turned around they were free. I don’t know who cut who free.” Their faces suggested that they were “a bit shocked” when Peake came into the room. After this incident, the appellants changed into black pants and blue business shirts. The appellant, Ian Styman, had told Peake that the appellants were doing a security job that night in Wollongong. After the appellants had changed Peake told them he was going out to get milk. Taber said: “No you’re coming with us.” Peake said he was not. One of the appellants said: “You are.”

67 Subsequently, Peake changed into a blue business shirt with a tie. Peake and the appellants got into Taber’s mother’s car with Ian Styman driving. This was about 6 or 7 pm. They drove to Greenwell Point and stopped at a service station where Peake was told to buy a can of WD40 or similar and was given $10. He was told to remove the blue shirt before going into the service station, which he did. On returning to the car Peake asked the appellants where they were going and was told he would find out when they got there. Fifteen minutes later they arrived in Greenwell Point and Peake was told to wear the blue shirt again. The car was driven past a bowling club. Peake marked the route taken on a map during his evidence. The car was then driven to the end of Greenwell Point near the pools and was parked there. Peake removed his blue shirt and went into a pub with the appellants where they remained for about half an hour.

68 They returned to the car. This time Peake was driving. The appellants directed him. He was told to stop the car and the appellants got out and told Peake to drive back towards the pools and wait there for them to ring him. He parked the car and waited for the call on his mobile. Fifteen or twenty minutes later, Ian Styman rang and told Peake to “come and get us”. He picked the appellants up in front of the bowling club. Peake’s evidence was that at some stage, either at the house or in the car, he noticed three or four cable ties, each about a metre in length, in Ian Styman’s top pocket or pants. The car was driven back to Taber’s mother’s house. Peake was told to forget what he saw.

69 In mid-January 2001, Peake saw Ian Styman in Nowra with a 4WD. Peake asked him where he got it from and Ian Styman said he had sold his motorbike.

70 Taber’s father gave evidence that in December 2000 his hours of work were 2 am to 8.30 am and 11 am to 5.30 pm at a dairy. He had come home every night until it was time to work again the next morning. He had met Peake once in 1999 and had never seen him at his house between 1 December and 23 December 2000 nor ever witnessed an incident where his son used cable ties to tie up someone. There was evidence that Taber was working in Canberra in late November/early December 2000.

71 Sharyn Styman (Ian Styman’s wife) said that in December 2000 she and Ian Styman were in receipt of social security benefits and rented their house in Sanctuary Point. Around Christmas 2000, she saw Ian Styman with a surplus of money. She was aware he had bought a motorbike in early December for a few thousand dollars. He said the money came from selling his previous bike and also a computer. This evidence was corroborated by the purchaser of the computer and the bike. She gave evidence that he did security work. The last she recalled was a few years before 2000. Ian Styman would wear a blue shirt and blue pants.

72 In January 2001, Sharyn Styman saw the appellants both wearing blue business shirts. Ian Styman told her he had a security job in Wollongong. It was daytime, after lunch, when they left the house in Peake’s red Ford Laser. A few hours later, Peake returned to her house. She could not recall if she had seen Ian Styman again that day. She had not seen Taber. She could not recall seeing Ian Styman again until the next morning. A few weeks later she saw the blue shirts in her wardrobe and took them to the police. She agreed that Peake had told her about a “tying up episode” in her garage, with Taber also present.

73 Peake had mentioned this when they were in Sharyn’s house and again when they were travelling by car to Nowra to look for a car for Sharyn. Peake was driving and at one point became upset and pulled over. He said he was upset because of this “tying up business”. Sharyn had to drive the car home. Peake had talked for a couple of hours. He had also told her that the shirts were used as a uniform while they were checking someone’s house in Greenwell Point and that they were also used on the night when Ian told her he had the security job in Wollongong.

74 In evidence, Sharyn said that in early January 2001 Ian brought home a Suzuki Soft Top 4WD which Crown evidence later established was purchased on 7 January 2001. Taber was with Ian when he drove it up the driveway. She asked him where he got the money from. He said it was from work he had done in Canberra. On the same day, Ian also brought home a pine TV cabinet which he said had been on lay-by. Later, after Ian had been charged, Sharyn found the receipt for it in her bedroom. There was no reference to its having been on lay-by. Ian sold the Suzuki a few weeks later.

75 The day before Sharyn saw the Suzuki at her house, Ian and she had a discussion about her going with him to Sydney to look for a car. It had been a last minute arrangement. It was 6 January 2001 and they were both at home. That afternoon he changed his mind and told Sharyn that he was going to Sydney with Taber. This happened after Ian had received a telephone call from Taber.

76 Sharyn did not see Ian again that night. She had no recollection of him coming to bed. She said in cross-examination that after Ian had told her that he was going to Sydney with Taber she went about her own business and did not recall whether Ian was home or not. Later she agreed that her recollection was that Ian had left the house after they had had an argument. She did not see him again until the next afternoon when he returned home with the Suzuki. She did not know where he was between 11 pm and 5 am.

77 Usually Sharyn went to bed by 11 pm. She had not woken at all during that night. She agreed that Ian was often in the garage or on the internet until early in the morning and could have been in the garage that night working on computers and playstations. In cross-examination, she agreed that she had told police when she was interviewed that Ian had been on the internet that night and also had been working on Playstations. In evidence she said that she thought Ian had been at home though this was based on what she used to observe of Ian around that time, not that night in particular. She agreed that she had told police that she thought Ian might have been at Taber’s house, though this had only been an assumption.

78 In cross-examination, Sharyn agreed that Ian was always talking about buying cars and motorbikes. She did not know that he was actually going to buy a car. A week before he brought home the Suzuki there had been talk about trading in her car for a newer model. As far as she knew he was not saving to buy a car.

79 Sharyn and Ian did not share bank accounts and she had no knowledge of his having enough money to afford the car he bought. She agreed in cross-examination that Ian received extra money from the work he did with playstations and computers, as well as, security work. Ian and she did not discuss money but she did not expect him to have that much.

80 Peake gave further evidence in which he said that the blue shirts identified by Sharyn were similar to those worn by Ian and Taber. In cross-examination, he agreed he may have told Sharyn that he had seen Taber tying up Ian with cable ties. He did not recall this and denied ever telling her that he had seen this happen in the garage. He confirmed that what he saw happened in Taber’s mother’s home.

81 Ms Briese gave evidence that she conducted DNA tests on the two blue shirts. She concluded that Ian Styman could not be excluded as a contributor to DNA on one of the shirts which was a mixture of DNA types. The deceased, Taber and Shannon Styman were all excluded as contributors. For the other shirt, Ian Styman, Shannon Styman, Taber and the deceased were all excluded as contributors.

82 On 5 November 2002 during the trial, Leonie Ravell, Taber’s de facto, entered a plea of guilty to hindering the investigation in relation to Taber between 19 and 24 January 2001. She gave evidence (by leave) that on 6 January 2001, around 5 pm, she was at home with Taber. Around 7 or 8 pm she went to bed and Taber left the house. She did not see if he left in a particular vehicle. Around that time, Taber was driving his mother’s white Hyundai. When she went to bed there was no one else in the house. When Taber left the house, Leonie was in her bedroom and heard voices from the driveway. She was pretty sure they were the voices of Ian and Shannon Styman. There came a time when she no longer heard the voices but she did not see anyone leave. She heard a car starting but did not see who was in that car. The car drove away and she heard no more voices after that. She then went to sleep.

83 It was suggested to her that Taber went out briefly to get some take away food. She could not recall that. At around 6 am the next morning Leonie recalled being woken up by Taber. There was nothing to suggest that he came to bed the night before. She may have asked him where he had been but could not recall what he said. It may have been that he had simply been out. She agreed she did not know if he had meant he had been out all night or only on the morning of 7 January 2001. They went to Sydney in the white Hyundai with Ian and Shannon Styman to look for a car. That morning was the first she knew about a proposal to go to Sydney. On the way she slept in the back seat. At no stage was the car stopped on a bridge and a bag thrown out.

84 Leonie had no memory of getting up during the night. At no time during the night did she hear a car leave her house or any conversation outside between Taber, Ian or Shannon Styman. Her bedroom was near the carport. She expected she would have woken if a car was driven in her driveway. She agreed that Ian Styman might have visited the house on 6 January 2001. It was suggested that Taber and Ian Styman had spent the afternoon setting up a playstation to the TV with a car racing game. She did not recall a Playstation in the house. She denied arguing with Taber about his staying up and playing the game all night. She agreed she had been outside sunbaking for most of that day. She agreed in cross-examination that she had told police that earlier on that day Ian came to the house on his motor bike and had left it there and borrowed the white Hyundai. Shannon Styman had also been there. He came on his motorbike. She told police that she recalled being woken up the next morning around 6 am by the sound of the car. She said in evidence that at that time she had heard voices outside, one of which was Ian Styman’s. She had also heard Shannon and seen the white Hyundai.

85 John Styman was the brother of Ian and the father of Shannon. He worked as a volunteer at Nowra Police Station. On a Sunday night in March 2001, Ian came to his house and asked to see him outside. Shannon was also present. Ian told John that he had been “DNA’d” from the Nowra Police and asked John what would happen if the DNA came back positive and “if there was any way that the DNA could be changed before it came back”. John Styman told him there was not. At that time Ian was very shaky, he looked upset and was in tears. Ian told John that the police were trying to charge him, Shannon and Taber with the murder of Mrs Alchin. John Styman reported this conversation to the police. This evidence was not led against Taber.

86 John Styman was cross-examined along the lines that at about the time of this conversation he had been taking medications to assist him with pain from damaged muscles and nerves. He agreed that the medication made him drowsy. He said that Ian had asked him if there was any way that the DNA could be tampered with. He was not sure if Ian had asked him if the DNA could be planted. He did not recall Ian saying anything about the police in that conversation. He agreed that after he had made his statement to police he said he “truly misunderstood whether I was asked by Ian to tamper with any evidence”.

87 Cheryle Ravell, who was Mrs Alchin’s sister and Leonie’s mother, gave evidence that a week after 24 January 2001 she visited 211 Old Southern Road and fed the dogs. She found an exercise book which had quotes for buildings and drawings of buildings. In the middle was a drawing of a house which looked like her sister’s house. She tore the page out of the book and kept it in the console of her car. She showed it to her daughter, Melinda, and also mentioned it to Leonie. No one else had access to her car. Subsequently, she discovered that the sketch went missing from her car. This evidence was corroborated by Melinda, who drew a similar sketch. In an interview by Detective Senior Constable Paul Johnstone, she was asked why she had taken so long to tell the police officer about it. She did not know. She agreed that she had said that the map she had found was damning evidence and that it was a “golden opportunity to get rid of Peter” someone she did not like.

297 Mrs Styman said that two shirts were taken from the house. She identified similar items that she located at her home. There did not seem to be any dispute that the shirts which were of a similar type to that described by Peake belonged to Ian Styman. According to her, they did not wear the shirts from the house and this complemented Peake’s evidence that they changed into them at Taber’s mother’s house. She did not see the shirts again for a few weeks.

298 All the arguments in support of this ground of appeal were put in submission to the jury in counsel’s closing address. The fact that the jury may have assessed Taber’s evidence differently from that suggested by counsel does not mean that they were acting contrary to the evidence. The Crown submitted that it was quite apparent that there was sufficient evidence to establish Taber’s involvement in the offences even if Peake’s testimony was completely rejected. He was, however, significantly supported by Mrs Styman’s evidence and, on one view, aspects of Taber’s testimony.

299 Ms Turner’s cannabis use was fully explored and the evidence was available for the jury to consider in assessing her reliability. She established that Taber knew of Mrs Alchin, where she lived and that she had access to money. It was open to conclude that these matters were common knowledge in the household in which he lived and that his girlfriend, Leonie Ravell, had spoken about Mrs Alchin’s financial position shortly before she was robbed. If Peake’s evidence was accepted, the conversation must have occurred shortly before Taber travelled to the vicinity of Mrs Alchin’s house while dressed as a security guard.

300 Leonie Ravell gave evidence that Taber left home on the night of 6 January at about 7 or 8 pm. She did not see him again that night. Before Taber left, she heard voices coming from the direction of the yard that she identified as Ian and Shannon Styman. She did not see Taber again until 6 or 6.30 the next day. Ian and Shannon Styman were also present on that occasion. She did not hear Taber using the phone at about 3 am or the sound of a car leaving at 3.30 am. She was unaware of a motor cycle approaching the house at 4.30 am. The bedroom she shared with Taber was “right beside the carport” so it was reasonable to conclude that if a vehicle had left, as asserted by Taber, she would have heard it. Consequently, she did not assist Taber about his whereabouts when the offences were committed. Contrary to Taber’s account, she confirmed there was no PlayStation in the house on 6 January.

301 The Crown submitted that, in essence, her evidence not only failed to assist Taber but, logically, it undermined what the jury may have considered a rather fanciful account of how he was occupying himself that night and during the early hours of the morning. It was open to the jury to conclude that Taber’s account was false and that he left the house with the Stymans some hours before Mrs Alchin’s house was entered. It was also available to conclude that he did not return until early the next morning in the company of the Stymans and in possession of a significant sum of money.

302 Allegedly planted duct tape was found in Taber’s utility. This was exhaustively dealt with in the evidence. There was no dispute by Taber that he had tape at his house. When initially spoken to, he did not appear to dispute the fact that police had found tape in his vehicle. The answer in the interview confirmed that the presence of the tape in the vehicle was not unusual because it was something Taber used in his employment. Even if someone other than Taber placed it there, this did not detract from other evidence of his involvement, including the presence of other duct tape and cable ties of the same general type used in the commission of the offences. Peake witnessed the use of cable ties in circumstances from which it could be inferred that it was either proposed to use them as a constraint, or their suitability for that purpose was being ascertained.

303 There was no evidence (except by inference from Taber’s evidence) that the police placed the duct tape in Taber’s vehicle. The fact that this vehicle was not in Taber’s possession on the day the offences were committed and the fact that duct tape was used to restrain Mrs Alchin were matters for the jury. It was up to the jury as to how they analysed the competing arguments about the issue.

304 Taber submitted that Shannon Styman’s evidence was so unreliable that the jury acting reasonably could not have accepted it. The principal criticism was his conflicting accounts of his and his co-accused’s involvement. The jury was aware that he, in common with Taber and Ian Styman, had told lies to the police. It was not beyond the range of the jury’s experience that a possible explanation was that Shannon Styman’s primary motivation was self-preservation. Taber said that he was not involved but lied because he feared that the police might conclude that he was involved.

305 Shannon Styman’s evidence did not stand alone. Peake gave evidence of a visit to Greenwell Point with Taber and Ian Styman in rather unusual circumstances. The jury was entitled to conclude that the only purpose in dressing in a uniform or clothing that might be mistaken for a uniform was to convey that they were security guards and thereby gain someone’s trust. There was evidence of an earlier attempted entry into Mrs Alchin’s house. Shannon Styman gave evidence of an earlier attempt, which was consistent with the occasion when Taber, Peake and Ian Styman drove to the area in which Mrs Alchin lived.

306 There was objective evidence in the plastic card found wedged in the door to Mrs Alchin’s home that supported the conclusion that there had been an earlier attempt to enter the house. That happened in late December. The incident supported both Shannon Styman’s and Peake’s accounts. Based upon Shannon Styman’s evidence, attempts may have been made on two occasions.

307 That possibility was also consistent with the idea originating with Taber. There was no issue that the proceeds of the robbery had been divided between the three men whom Shannon Styman said were involved in the commission of the offences. The jury was entitled to reject Taber’s account as to why he should have received a share in something in which he had not participated and why Shannon Styman would have even mentioned that he had committed a robbery. Similarly there was considerable evidence of Taber’s strained finances and the issue of his whereabouts on the night the offence was committed.

308 The suggestion that after gagging the victim Taber said, “tell us where the money is” rendered his evidence absurd, did not necessarily follow. The seemingly illogic of gagging someone and then asking where the money was had to be considered in the context of the offence. The offenders were apparently not experienced in breaking and entering premises and subduing the occupant. The offenders’ primary objective was to prevent Mrs Alchin recognising them and to ensure that she did not raise the alarm by screaming. The gagging and hooding must have occurred in a matter of seconds. Having regard to the stress of those initial minutes, it was entirely possible that such a seemingly illogical statement was in fact made. It was a matter for the jury how they interpreted the evidence and whether or not it fundamentally undermined the testimony of the witness. If accepted, Peake’s evidence was consistent with Shannon Styman’s case that the prime motivators were Taber and Ian Styman. Shannon Styman said that they were the two men who accompanied him to commit the offences. It would have been quite extraordinary if Taber had dressed like a security guard and travelled to Mrs Alchin’s home a short time before the offences yet was not involved with Shannon Styman in subsequently committing those offences.

309 Taber relied upon the fact that he and Ian Styman gave consistent accounts. Ian Styman had given a false account to police and was contradicted on significant issues by his wife and Peake. In common with Taber, he gave an account of his activities on the morning of the offences that was illogical. His receipt of a share of the proceeds of the robbery were inexplicable other than in the context in which Shannon Styman said it had been paid: as his share for having participated in the offences.

310 There was nothing about Ian Styman’s evidence that was not properly open to the jury to consider. Clearly, they determined that his account was false. It was open for them to do so solely upon Shannon Styman’s evidence.

311 Taber’s credibility was immediately in issue because of the lies he told the police and the reason given for those lies. There was evidence that, even after police spoke to him, he maintained a false account about his possession of the money from the robbery. It was open to the jury to conclude that his claim of confronting Shannon Styman about the alleged robbery of a drug dealer was unacceptable and his evidence that Shannon Styman gave him a large sum of money for no real reason was unbelievable. Peake and Mrs Styman, in particular, gave support for the contention that Taber was, as asserted by Shannon Styman, directly involved in the commission of the offences. On one view the tape located in Taber’s vehicle placed the accuracy of Shannon Styman’s account beyond doubt. None of the submissions made on the appellants’ behalf in this Court persuade us that the jury was not entitled to rely on the substance of Shannon Styman’s evidence that inculpated the appellants.

312 The Crown submitted that the case against Taber was formidable. There was credible evidence that he had participated in conduct with Ian Styman involving the use of cable ties immediately prior to being driven to the area in which Mrs Alchin lived. He had no alibi for his whereabouts on the night in question and the evidence of Leonie Ravell strongly undermined his claim that he was at home. On his own account, within hours of the offences he was in possession of a significant proportion of the stolen money. He lied to the police and also to members of Leonie Ravell’s family about where the money had come from. He had possession of like, or identical, items to those used in the commission of the offence. Mrs Alchin was a person to whom his girlfriend was related and who he knew had money in her home. Mrs Alchin, the very person from whom Taber had recently tried to borrow money, was shortly thereafter robbed and part of the proceeds of the robbery given to him for no acceptable reasons. In addition, there was evidence of his poor financial circumstances at the time of the offence.

313 The circumstantial case against Taber was strong without recourse to the direct evidence from Shannon Styman. There was no basis for concluding that the jury acted other than in accordance with the available evidence and the trial Judge’s directions.

314 In our opinion, the evidence was sufficient to support the verdict against each appellant that on or about 6 January 2001 in circumstances of aggravation they broke and entered Mrs Alchin’s dwelling and there committed a serious indictable offence, namely, whilst in company with each other robbing her of her money and at the time of committing such offence depriving her of her liberty. However, there is one crucial matter which gives rise to a doubt about the verdicts that these appellants were guilty of murder for the reason that they caused Mrs Alchin’s death by an act or omission done or omitted with reckless indifference to human life.

315 In acquitting Shannon Styman of murder in circumstances where he conceded by his plea of guilty that he was a participant in the breaking and entering of Mrs Alchin’s dwelling, of robbing her in company and depriving her of her liberty, undoubtedly it was open to the jury on the evidence of Shannon Styman’s statement of belief that Mrs Alchin would be rescued and that the police had already found her, not to be satisfied beyond reasonable doubt that he fully realised she would probably die.

316 Each appellants’ case was that neither had played any part in any of the offences committed. They had only learnt of what had happened after Shannon Styman spoke to Taber at 3 am on 7 January 2001. Consistently with that case, they gave no evidence of their belief about whether Mrs Alchin would die after the 000 call was made. It would have been unreasonable for the jury to find that after they abandoned Mrs Alchin the appellants did not intend to ring the 000 number in the belief that their call would be responded to and that thereafter immediate steps would be taken to release Mrs Alchin. Up to that point of time, the jury could not have been satisfied beyond reasonable doubt that either appellant fully realised that Mrs Alchin would probably die as a result of their abandoning her, bound and gagged, in her dwelling.

317 In order to convict the appellants for murder the jury had at least to be satisfied beyond reasonable doubt that in the time that passed after the 000 call was made and before Mrs Alchin died, which may have been some days before 16 January 2001, they became aware that she had not been and would not be rescued and thereby fully realised that she would probably die.

318 The Crown submitted that the appellants would have realised that Mrs Alchin had not been rescued because there were no news reports of such a rescue and they had not heard through their connections with the family and with each other that she had been found.

319 This reasoning seems to us to be fundamentally flawed. The possibility that Mrs Alchin had not been rescued needs to be weighed against the high probability, amounting to virtual certainty, that the 000 call would be acted upon. It must be borne in mind that Ian Styman actually spoke to the operator. The likelihood that the operator would forget or otherwise fail to communicate such a call to the police was extremely remote.

320 By contrast, that something will get into the news is not one of those certainties: that someone would want to contact the media is mere surmise; moreover, in the particular circumstances of this case, the role of the police and the possible attitude of Mrs Alchin to such publicity could provide other reasonable explanations for there being no reports of the crime.

321 Common sense suggests that a news report was indeed probable but that probability had to be weighed against the virtual certainty of a response to the 000 call. The inference that, had Mrs Alchin been rescued, this would have been reported in the media could not be drawn beyond reasonable doubt, even in the absence of the countervailing improbability that the 000 call would be ignored.

322 The appellants were not informed by any member of the family of Mrs Alchin’s rescue, either. The Crown sought to argue that they must have inferred from this that she had not been rescued. Although the assumption that, had there been a rescue, members of the family would have been informed is not unreasonable, it is far from certain having regard both to the family estrangement and the possible role of the police.

323 The possibilities of belief about what had happened which might flow from lack of publicity or information from the family are, if not limitless, highly speculative and amount to little more than suspicion. We have already mentioned the additional crucial point that, even if it could be inferred beyond reasonable doubt that the appellants realized by 15 or 16 January that Mrs Alchin had not been rescued, it could not be concluded beyond reasonable doubt that she was then still alive. There is no direct evidence to support a finding that the appellants were aware that Mrs Alchin had not been rescued, which, in the end, can only be based on surmise.

324 Shannon Styman’s belief about the police intervening to conceal Mrs Alchin’s discovery for the purpose of their investigation was thus reasonable, if one bears in mind the unlikelihood of the police not reacting to the 000 call and provides the most likely explanation of the verdict of manslaughter in his case, although the possibility that, having regard to his candour, he was accorded what the jury regarded as a merciful verdict cannot be entirely discounted.

325 The Crown also submitted that the appellant was a recluse with little, if any, social communication with any neighbours or friends and that the appellants were aware of her isolation. Whilst the evidence supported a general picture of social isolation, it was not nearly as complete as this submission suggested. It could not be justifiably inferred that the Crown called evidence from all persons with whom Mrs Alchin was in contact, nor did those witnesses who were called give evidence that she had no other friends or contacts. The family members who were called did not give evidence that, apart from their own estrangement from Mrs Alchin, she had no other social connections, nor did any of them suggest that this was a matter of common knowledge in the family or had been communicated, one way or another, to the appellants. Thus the evidence did not permit the conclusion that the appellants knew or believed that it was improbable that Mrs Alchin would not be found relatively soon by persons other than the police, who might have been in regular contact with her, if only by telephone, and might have become concerned (as the Reeves eventually did) at being unable to make contact.

326 It follows that it was not open to the jury to conclude beyond reasonable doubt that, at any time before she died, the appellants fully realized that Mrs Alchin would die unless they rescued her. Accordingly the conviction of each appellant of murder should be quashed.

327 The convictions for aggravated robbery stand.

The sentences

328 The appellants appealed against the sentences imposed. These sentences are in marked contrast in terms of severity with those imposed on Shannon Styman, who, of course, pleaded guilty and assisted the Crown by giving evidence at the trial.

329 In his remarks on sentence on the murder counts, Barr J observed that the jury must have been satisfied beyond reasonable doubt that before Mrs Alchin died Taber and Ian Styman fully realised that she had not been rescued and that she would probably die.

“The circumstances and the probable fate of Mrs Alchin must have been foremost in their minds. They must have expected that Mrs Alchin would be rescued within a short time after the telephone call and they must have been alert for news of her rescue. I am satisfied that they became fully aware within twenty-four hours after the telephone call that their attempt to have her rescued by that means had failed. From all that he knew about Mrs Alchin Taber must have realised the implications straight away. He and Ian Styman were best friends and frequently in communication with each other by telephone and in each other’s company. Ian Styman must also have shared quite quickly Taber’s realisation that since people rarely went to Mrs Alchin’s house she would probably not be rescued. They both knew because of the position in which they had abandoned her that if she was not rescued she would certainly die.”

330 As we have said, with due respect we do not think it was open to the jury to be satisfied beyond reasonable doubt of the realisation by the appellants that Barr J there describes. Nor, with respect, did the evidence justify the conclusion that “people rarely went to Mrs Alchin’s house” or that the appellants thought that this was so. As we have pointed out, there was no evidence from any member of the family to this effect. However, when his Honour came to consider Shannon Styman, he said:

“The jury may well have been satisfied beyond reasonable doubt, as I am, that there was no substance in Shannon Styman’s claim to a suspicion that the police might have been concealing the fact of her rescue, but they were not satisfied that he realised on that account that Mrs Alchin would probably die.”

331 In our opinion, particularly in light of their findings in relation to Shannon Styman, the jury were not entitled to be satisfied beyond reasonable doubt that Ian Styman and Taber realised that Mrs Alchin would probably die. Barr J found, in respect of the facts upon which the appellants were sentenced for the offence of aggravated breaking entering and stealing, that the appellants realized after twenty four hours that the 000 call was ineffective and thus that they left her bound and disabled for an indefinite period (up to the point of death), knowing that she probably would not be rescued in that time. This was regarded by his Honour as a serious aggravating feature of the offence of aggravated breaking entering and stealing. In light of our view on this matter, this finding cannot stand. It follows that the sentences for aggravated breaking and entering and committing a serious indictable offence must be quashed since, to some extent, less severe sentences are “warranted in law” (see s6(3) Criminal Appeal Act).

332 The question remains as to whether there should be a new trial of the appellants on the alternative count of manslaughter. The Court sought written submissions from the parties as to whether it would be appropriate to exercise the power under s7(2) of the Criminal Appeal Act to substitute an alternatively available verdict upon the assumption that the Court considered that the verdict of murder was unreasonable for the reason that it could not be concluded beyond reasonable doubt that, at the relevant time, the appellants fully realized that Mrs Alchin would probably die. The appellants submitted that there should be a new trial; the Crown did not ask the Court to substitute a verdict of manslaughter. We recognize that the parties did not, of course, have the benefit of this judgment when making these submissions. In the circumstances, the Court has formed the view that it should order that the verdicts of murder should be quashed and that there should be new trials on the charge of manslaughter but that the Crown will have liberty to apply, by letter to the Registrar, for an order substituting a verdict of manslaughter in relation to either or both appellants in lieu of the order for a new trial, provided such leave is exercised within 28 days from the date of this judgment. That is not to say that we encourage such application. Nor should it be thought that the Court considers that such an application would have merit. It is unnecessary to give liberty to apply to the appellants since, as a matter of procedure, they can plead guilty to manslaughter on presentation of the indictment if they think it right to do so.

333 It will be necessary to hear submissions on resentencing the appellants for the offence of aggravated breaking and entering, The Registrar should set a date in November for a resumed hearing on that topic and to hear any application pursuant to s7(2), if made. Any application to defer resentencing for aggravated robbery until after a new trial for manslaughter can be made at the resumed hearing. That is not to say that we encourage such an application. The Registrar will set a timetable for further written submissions to be made on the resentencing and fix a date for any necessary hearing.

Orders