McClellan CJ at CL at 1; Sully J at 2; Howie J at 128
DECISION:
In the appeal of Alan John Tekely: (1) Appeal against conviction dismissed (2) Leave granted to appeal against sentence (3) Appeal against sentence dismissed; In the appeal of Craig Michael Nagle: Appeal against conviction dismissed
D. Arnott SC - Crown P. Doyle - Tekely A. Haesler SC - Nagle
SOLICITORS:
S. Kavanagh - Crown Marks Kleef & Assoc. - Nagle
LOWER COURT JURISDICTION:
District Court
LOWER COURT FILE NUMBER(S):
04/11/1505
LOWER COURTJUDICIAL OFFICER:
Hock DCJ
LOWER COURT DATE OF DECISION:
2 June 2006
2006/2499 2007/144
McCLELLAN CJ at CL SULLY J HOWIE J
23 March 2007
Alan John TEKELY v REGINA
Craig Michael NAGLE V REGINA
Judgment
1 McCLELLAN CJ at CL: I agree with Howie J.
2 SULLY J:
Introduction and Common Background
3 On 6 March 2006 the present appellants, Mr. Alan John Tekely and Mr. Craig Michael Nagle, jointly stood trial before her Honour Judge Hock, sitting in the District Court at Sydney. They were so tried upon a joint indictment containing three counts.
4 Count 1 charged each appellant with the manslaughter of one Antoni Rolfi on 20 December 2000 at Fairfield.
5 Count 2 was laid in the alternative and charged each of the appellants with having assaulted, at the same time and place, the same victim, thereby occasioning to him actual bodily harm.
6 Count 3 charged the appellants jointly with having unlawfully imprisoned Antoni Rolfi at Fairfield on 20 December 2000. There was a third person presented in connection with Count 3 but that is a matter of no moment in connection with the present appeals.
7 The jury found each of the appellants guilty as charged in Counts 1 and 3.
8 The offence of manslaughter, as charged in Count 1 of the indictment, contravenes section 24 of the Crimes Act 1900 (NSW). It attracts upon conviction a statutory maximum penalty of imprisonment for 25 years. The offence of unlawful imprisonment, as charged in Count 3 of the indictment, is a common law offence and the penalty in any particular case is at large.
9 In due course Mr. Tekely was formally convicted of the offences of which the jury had found him guilty. For the offence of manslaughter…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Tekely v R [2007] NSWCCA 75
Case
[2007] NSWCCA 75
Decision Date
CaseChat Overview and Summary
Alan John Tekely and Craig Michael Nagle appealed against their convictions of manslaughter and unlawful imprisonment of Antoni Rolfi, and Tekely also appealed against the severity of his sentence. Tekely’s ground of appeal against conviction was that the jury’s verdict was unreasonable. Tekely also applied for leave to appeal against the severity of his sentence, contending it was manifestly excessive and that the sentencing judge had erred in finding he was only entitled to delay up to 21 October 2005. Nagle’s grounds of appeal against conviction were that the trial judge had erred in her directions to the jury by inviting them to consider Tekely’s record of interview as part of the crown case against Nagle for manslaughter, that the trial judge had erred in her directions to the jury on manslaughter and joint criminal enterprise, and that the convictions were unreasonable because there was a reasonable doubt whether Nagle was participating in a joint criminal enterprise when the blows said to have caused death were inflicted, the blows said to have caused death were not objectively dangerous, and the prosecution had failed to exclude as a reasonable possibility that the injuries causing death had been occasioned prior to the incident said to involve Nagle. Nagle also sought leave to appeal against the severity of his sentence, contending parity of sentences required some downward adjustment of sentence should Tekely’s sentence appeal be successful. The NSW Court of Criminal Appeal held that the appeal against conviction should be dismissed for both Tekely and Nagle. The appeal against sentence should be dismissed for Tekely, and Nagle’s appeal against sentence should be dismissed. The Court found that the jury was entitled to accept and act upon the evidence of Drs Haddad and Ellis, and particularly the evidence of Dr Ellis. It was well open to the jury to be satisfied beyond reasonable doubt that the deceased had been very severely beaten, in whatsoever manner, to his abdomen and with the consequence of serious internal injuries, the sequelae of which brought about his death. The evidence of Mr Horvath, if accepted, significantly strengthened the Crown case. The jury was entitled to accept and act upon the admissions made by Tekely in his recorded interview with the investigating police. It was well open to the jury to be satisfied beyond reasonable doubt that the appellant was present at the time when the ultimately fatal blows were struck by Tekely and was then engaged with Tekely in an unlawful common enterprise: namely, the enterprise of unlawfully detaining and physically assaulting the late Mr Rolfi. Nagle’s convictions were not unreasonable. The trial judge’s directions to the jury made it completely clear that the jury, in order properly to find Nagle guilty upon the basis of an unlawful common enterprise with Tekely, had to find not only that Tekely had struck the ultimately fatal blows, but that Nagle had been there at that time “knowing Tekely was assaulting Mr Rolfi and intentionally encouraging or assisting him to do so”. Those directions seemed to put fairly, clearly and in language which a lay jury might be expected to understand readily, the essence of the Crown case as it had been opened and thereafter consistently pursued at trial.