NEW SOUTH WALES COURT OF CRIMINAL APPEAL
CITATION: TABER, Peter v. REGINA; STYMAN Ian v. REGINA [2007] NSWCCA 116
This decision has been amended. Please see the end of the judgment for a list of the amendments.
FILE NUMBER(S):
2006/1961
2006/1990
HEARING DATE(S): 11 December 2006
JUDGMENT DATE: 26 April 2007
PARTIES:
Peter Taber - appellant
Ian Styman - appellant
Regina - respondent
JUDGMENT OF: Hodgson JA Howie J Price J
LOWER COURT JURISDICTION: Supreme Court
LOWER COURT FILE NUMBER(S): SC 2002/118, SC 2002/120
LOWER COURT JUDICIAL OFFICER: Studdert J
LOWER COURT DATE OF DECISION: 15 December 2005
LOWER COURT MEDIUM NEUTRAL CITATION:
[2005] NSWSC 1292
COUNSEL:
Mr. G.D. Wendler with Mr. J.A. Dalzell for Taber
Mr. A.W. Street SC with Mr. D.C. Price for Styman
Mr. D. Arnott SC with Ms. A. Mitchelmore for Crown
SOLICITORS:
Van Houten Solicitors for both appellants
S. Kavanagh, Solicitor for Public Prosecutions, for Crown
CATCHWORDS:
CRIMINAL LAW - Appeal against conviction - Plea in bar - Autrefois convict - Where elements of offence overlap - Abuse of process - Admission of hearsay evidence pursuant to s.65 of the Evidence Act 1995 - Witness "not available" - Evidence given in a proceeding - Whether section limited to evidence given by prosecution witnesses - Whether unfairly prejudicial - Whether verdict unreasonable - Appeal against sentence - Whether manifestly excessive.
LEGISLATION CITED:
Crimes Act 1900 ss.94, 105A, 112
Evidence Act 1995 ss.65, 83, 137 and dictionary cl.4(1).
CASES CITED:
Island Maritime Limited v. Filipowski [2006] HCA 30
Jones v. The Queen (1997) 191 CLR 439
M v. The Queen (1994) 181 CLR 487
Pearce v. The Queen [1998] HCA 57, (1998) 194 CLR 610
R v Elrington (1861) 1 B & S 688, 121 ER 870
R v. Beedie [1997] 2 Cr App R 167, [1998] QB 356
R v. Stone [2005] NSWCCA 344
DECISION:
In each case: 1. Appeal against conviction dismissed. 2. Leave to appeal against sentence granted, and appeal against sentence dismissed.
JUDGMENT:
IN THE COURT OF
CRIMINAL APPEAL
CCAP 2006/1961
CCAP 2006/1990
SC 2002/118
SC 2002/120HODGSON J A
HOWIE J
PRICE JThursday 26 April 2007
Peter TABER V. REGINA
Ian STYMAN v. REGINA
Judgment
HODGSON JA: On 19 September 2005, the appellants were arraigned before Studdert J on a charge that they between 5 January and 19 January 2001 at Greenwell Point in the State of New South Wales did feloniously slay Joy Golbie Achin. Both appellants pleaded not guilty and were tried before Studdert J and a jury. On 2 November 2005, both appellants were found guilty of manslaughter.
On 15 December 2005, Studdert J sentenced both appellants for two offences, one being an offence of breaking and entering a dwelling house and committing therein a serious indictable offence in circumstances of aggravation (which I will call aggravated break and enter) of which they had previously been found guilty, and the other being the offence of manslaughter. In each case, for the aggravated break and enter the trial…
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Details
- AGLC
- Taber v R; Styman v R [2007] NSWCCA 116
- Case
- [2007] NSWCCA 116
- Decision Date
CaseChat Overview and Summary
The case of Taber v R and Styman v R involved an appeal against conviction and sentence by the appellants, who were found guilty of manslaughter. The legal issues included whether there was an abuse of process, the admissibility of hearsay evidence under the Evidence Act 1995, and whether the verdict was unreasonable or the sentence manifestly excessive. The court examined the elements of the offences and found that the appellants could not succeed on the basis of autrefois convict or abuse of process. The court also determined that the hearsay evidence was admissible under the relevant sections of the Evidence Act, and that the verdict was not unreasonable. The court further found that the sentence was not manifestly excessive.
The court's reasoning was based on the elements of the offences, the admissibility of hearsay evidence, and the reasonableness of the verdict and sentence. The court held that the offences charged had different elements, and that a plea in bar was not available. The court also held that the hearsay evidence was admissible under the Evidence Act, and that the verdict was not unreasonable. Finally, the court held that the sentence was not manifestly excessive. The final orders of the court were that the appeals against conviction and sentence be dismissed.
The court's reasoning was based on the elements of the offences, the admissibility of hearsay evidence, and the reasonableness of the verdict and sentence. The court held that the offences charged had different elements, and that a plea in bar was not available. The court also held that the hearsay evidence was admissible under the Evidence Act, and that the verdict was not unreasonable. Finally, the court held that the sentence was not manifestly excessive. The final orders of the court were that the appeals against conviction and sentence be dismissed.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
In my opinion also, the suggestion of abuse of process has no substance. It could not have been an abuse of process to charge the appellants with aggravated break and enter and manslaughter. They were in fact charged with aggravated break and enter and murder. Their conviction for murder was overturned, and a new trial ordered. Although there was a discretion in the Director of Public Prosecutions whether or not to proceed with the charge of manslaughter, it borders on absurdity to suggest that it was an abuse of process to do so. HEARSAY EVIDENCE OF SHANNON STYMAN This issue raises questions under ss.65, 83, 137 and the explanation of “not available” in cl.4(1) of the dictionary of the Evidence Act 1995, which are in the following terms:65 Exception: criminal proceedings if maker not available(1)This section applies in a criminal proceeding if a person who made a previous representation is not available to give evidence about an asserted fact.(2)The hearsay rule does not apply to evidence of a previous representation that is given by a person who saw, heard or otherwise perceived the representation being made, if the representation was: (a)made under a duty to make that representation or to make representations of that kind, or(b)made when or shortly after the asserted fact occurred and in circumstances that make it unlikely that the representation is a fabrication, or(c)made in circumstances that make it highly probable that the representation is reliable, or(d)against the interests of the person who made it at the time it was made.(3)The hearsay rule does not apply to evidence of a previous representation made in the course of giving evidence in an Australian or overseas proceeding if, in that proceeding, the defendant in the proceeding to which this section is being applied: (a)cross-examined the person who made the representation about it, or(b)had a reasonable opportunity to cross-examine the person who made the representation about it.(4)If there is more than one defendant in the criminal proceeding, evidence of a previous representation that: (a)is given in an Australian or overseas proceeding, and(b)is admitted into evidence in the criminal proceeding because of subsection (3),cannot be used against a defendant who did not cross-examine, and did not have a reasonable opportunity to cross-examine, the person about the representation.(5)For the purposes of subsections (3) and (4), a defendant is taken to have had a reasonable opportunity to cross-examine a person if the defendant was not present at a time when the cross-examination of a person might have been conducted but: (a)could reasonably have been present at that time, and(b)if present could have cross-examined the person.(6)Evidence of the making of a representation to which subsection (3) applies may be adduced by producing a transcript, or a recording, of the representation that is authenticated by: (a)the person to whom, or the court or other body to which, the representation was made, or(b)if applicable, the registrar or other proper officer of the court or other body to which the representation was made, or(c)the person or body responsible for producing the transcript or recording.(7)Without limiting subsection (2) (d), a representation is taken for the purposes of that subsection to be against the interests of the person who made it if it tends: (a)to damage the person’s reputation, or(b)to show that the person has committed an offence for which the person has not been convicted, or(c)to show that the person is liable in an action for damages.(8) The hearsay rule does not apply to: (a)evidence of a previous representation adduced by a defendant if the evidence is given by a person who saw, heard or otherwise perceived the representation being made, or(b)a document tendered as evidence by a defendant so far as it contains a previous representation, or another representation to which it is reasonably necessary to refer in order to understand the representation.(9)If evidence of a previous representation about a matter has been adduced by a defendant and has been admitted, the hearsay rule does not apply to evidence of another representation about the matter that: (a)is adduced by another party, and(b)is given by a person who saw, heard or otherwise perceived the other representation being made.83Exclusion of evidence of admissions as against third parties(1)Section 81 does not prevent the application of the hearsay rule or the opinion rule to evidence of an admission in respect of the case of a third party.(2)The evidence may be used in respect of the case of a third party if that party consents.(3)Consent cannot be given in respect of part only of the evidence.(4) In this section: third party means a party to the proceeding concerned, other than the party who: (a) made the admission, or(b) adduced the evidence.137Exclusion of prejudicial evidence in criminal proceedingsIn a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant.4 Unavailability of persons(1)For the purposes of this Act, a person is taken not to be available to give evidence about a fact if: (a)the person is dead, or(b)the person is, for any reason other than the application of section 16 (Competence and compellability: judges and jurors), not competent to give the evidence about the fact, or(c)it would be unlawful for the person to give evidence about the fact, or(d)a provision of this Act prohibits the evidence being given, or(e)all reasonable steps have been taken, by the party seeking to prove the person is not available, to find the person or to secure his or her attendance, but without success, or(f)all reasonable steps have been taken, by the party seeking to prove the person is not available, to compel the person to give the evidence, but without success.
Decision
Reasons for decision
HODGSON J
Mr. Wendler also submitted that, even if a plea in bar was not available, there was an abuse of process because the manslaughter prosecution was, in legal reality, a trial for a more serious offence on the same facts already determined in the conviction for aggravated break and enter: cf. R v. Beedie [1997] 2 Cr App R 167, [1998] QB 356. Decision It is true that R v. Stone was dealing with a case where the earlier conviction relied on arose from a plea of guilty; but the judgment of the court was expressed in general terms as applying also to cases where there has been a finding of guilt by a jury. However, since in my opinion the appellants cannot in any event succeed on the basis of autrefois convict or abuse of process, it is not necessary to consider whether R v. Stone should be distinguished. In Pearce, the following appears:18 It is clear that the plea in bar goes to offences the elements of which are the same as, or are included in, the elements of the offence for which an accused has been tried to conviction or acquittal. There are, however, decisions that a person may not be prosecuted for one offence when that person has previously been prosecuted for "substantially the same" offence, or for an offence the "gist" or "gravamen" of which is the same as the subject of the earlier prosecution or, as was said in Wemyss v Hopkins [(1875) LR 10 QB 378], for the "same matter". It may be suggested that these cases indicate that a plea in bar is also available if a person is charged with different offences arising out of substantially the same set of facts. 19 Much of the difficulty in determining whether a plea in bar is available when a person is charged with different offences arising out of substantially the same facts can be seen to stem from two sources: first, the uncertainties inherent in the proposition that it is enough that the offences are "substantially" the same; and secondly, the attempt to identify the "sameness" of two offences by reference to the evidence that would be adduced at trial. But these difficulties may be more apparent than real. 20 In each of Chia Gee v Martin [(1905) 3 CLR 649] and Li Wan Quai v Christie [(1906) 3 CLR 1125], Griffith CJ identified the test for whether a plea in bar would lie as being "whether the evidence necessary to support the second [charge or prosecution] would have been sufficient to procure a legal conviction upon the first". At first sight this might suggest that it is appropriate to consider what witnesses would be called and what each of those witnesses could say about the events which gave rise to the charges. Closer examination reveals that the enquiry suggested is different; it is an enquiry about what evidence would be sufficient to procure a legal conviction. That invites attention to what must be proved to establish commission of each of the offences. That is, it invites attention to identifying the elements of the offences, not to identifying which witnesses might be called or what they could say. It is only if attention is directed to what evidence might be given, as opposed to what evidence was necessary, that the enquiry begins to slide away from its proper focus upon identity of offence to focus upon whether the charges arise out of the same transaction or course of events. 21 Further, when it is said that it is enough if the offences are "substantially" the same, this should not be understood as inviting departure from an analysis of, and comparison between, the elements of the two offences under consideration. 22 In this respect Wemyss is capable of being misunderstood. Wemyss had been convicted at petty sessions of an offence that being the driver of a carriage he had "by negligence or wilful misbehaviour, to wit, by striking a certain horse ridden" by the respondent caused hurt and damage to her. He was then charged (again at petty sessions) with unlawful assault. The court held that, the offences being summary offences, a plea of autrefois convict was not available but that a defence "in the nature of a plea of autrefois convict" was. The judgments of the members of the court (which were given ex tempore) use various expressions which have later been seized on as sufficiently expressing the test of the availability of a plea in bar. 23 Thus Blackburn J speaks of "proceedings for the same offence" and punishment "for the same matter"; Lush J speaks of prosecution "twice for the same offence" and conviction "again for the same act"; Field J speaks of twice being "punished for the same cause". (Examination of other reports of the same case reveal even greater differences in expression.) But, all of these expressions must be understood in their context. Their differences should not obscure the fact that the elements of each offence alleged against Wemyss were identical. The enquiry made in Wemyss was an enquiry about the offences that had been alleged, not about what other offences the relevant statutes might create. Thus the case against Wemyss on the first prosecution appears to have been not a case of negligent conduct but one of "wilful misbehaviour" constituted by his intentionally striking the victim's horse. That being so, the court was satisfied that the case propounded on the second prosecution was identical with the case propounded on the first. 24 On closer analysis, therefore, it may be that Wemyss and other cases that are said to support the proposition that a plea in bar is available when a person is charged with different offences arising out of the same set of facts do not do so. Moreover, there are sound reasons to confine the availability of a plea in bar to cases in which the elements of the offences charged are identical or in which all of the elements of one offence are wholly included in the other. 25 Shifting attention to whether the offences arise out of the same conduct, or out of a single event or connected series of events, would be to substitute for a rule prohibiting prosecution twice for a single offence a rule that would require prosecuting authorities to bring at one time all the charges that it is sought to lay as a result of a single episode of offending. That would raise still further questions. How would a single episode of offending be defined? Would its limits be temporal or would they be founded in the intentions of the actor? 26 Those are not questions that admit of certain answers and, whatever criteria are adopted, are not questions that could readily be answered at the time an accused enters a plea. In any event, such a test would, as we have said, shift attention away from the principal focus of the rule underlying the pleas in bar which is a rule against repeated prosecution for a single offence. It would be a test which would deny operation to some or all of the three other forces at work in this area: that several different offences may be committed in the course of a single series of events, that an offender can be punished only for the offence charged, not some other offence, and that charges will usually be framed in a way that reflects all of the criminal conduct of the accused.
Ratio Decidendi
Legal Principle Established
Established by: HODGSON J
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