New South Wales Supreme Court CITATION : R v TABER; R v STYMAN; R v STYMAN [2002] NSWSC 1239 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 70212/02; 70210/02; 70211/02 HEARING DATE(S) : 09/09/02-13/09/02, 16/09/02-20/09/02, 23/09/02, 24/09/02, 26/09/02, 27/09/02, 30/09/02, 01/10/02-03/10/02, 08/10/02-11/10/02, 14/10/02-18/10/02, 21/10/02-25/10/02, 28/10/02-31/10/02, 01/11/02, 04/11/02-08/11/02, 11/11/02-15/11/02, 18/11/02-22/11/02, 25/11/02-29/11/02, 02/12/02, 04/12/02-06/12/02, 09/12/02-11/12/02 JUDGMENT DATE : 11 December 2002 Regina v Peter David TABER PARTIES : Regina v Ian Craig STYMAN Regina v Shannon Troy STYMAN JUDGMENT OF : Barr J at 1 Crown: JP Kiely SC COUNSEL : Accused Taber: GD Wendler Accused Ian Styman: R McCrudden Accused Shannon Styman: PD Young Crown: SE O'Connor SOLICITORS : Accused Taber: Van Houten Accused Ian Styman: A P Sparke & Broad Accused Shannon Styman: Nikola Velcic & Co CATCHWORDS : Criminal law - murder by reckless indifference - whether omission to rescue deceased deliberately placed in danger capable of constituting actus reus. - Criminal law - murder by reckless indifference - whether binding, gagging and abandonment of deceased and subsequent omission to rescue deceased from danger constitute a single transaction. - Criminal law - murder by reckless indifference - whether mens rea and actus reus must exist at the same time. - Criminal law - murder by reckless indifference - whether unsuccessful attempt to rescue deceased deliberately placed in danger determines duty to remove danger. People v Beardsley 113 NW 1128 (1907) R v Conde (1967) 10 Cox CC 547 R v Gibbins and Proctor (118) 13 Cr App R 134 R v Hallett [1969] SASR 141 R v Instan [1893] 1 QB 450 R v Joukhadar, Court of Criminal Appeal, New South Wales, 13 June 1975, unrep CASES CITED : R v Lawford (1993) 61 SASR 542 R v Lowe (1850) 3 CAR & K 123 R v Marriott (1838) 8 Car & P 425 R v Miller [1980] 2 QB 532 R v Nicholls (1874) 13 Cox CC 75 R v Shepherd (1861) Le & Ca 3 147 R v Taktak (1988) 14 NSWLR 226 Thabo Meli & Ors v R [1954] 1 All ER 373 DECISION : See judgment IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION Graham Barr J Wednesday, 11 December 2002 70212/02 – REGINA v Peter David TABER 70210/02 – REGINA v Ian Craig STYMAN 70211/02 – REGINA v Shannon Troy STYMAN JUDGMENT – On the basis on which murder should be left to the jury 1 HIS HONOUR: At the close of the Crown case each accused moved for a directed verdict of not guilty of murder. In a judgment of 1 November 2002 I refused to give such a direction. I added some remarks on 6 November. As that latter judgment shows, I was unsure whether the events occurring between the time of the attack on the deceased and the time of her death ought properly to be regarded as a single continuous act or as an act followed by an omission. Following my remarks of 6 November, and before counsel's closing addresses began, I made it clear that I proposed to leave to the jury the availability of a verdict of guilty of murder in any accused's case constituted by an omission to fulfil a legal duty to remove the deceased from the danger in which she had been put combined with a realisation at any time during the period of omission and ending with the death of the deceased that she would probably die. Now that the jury have retired and there is more time to deal with the matter I wish to record my reasons for leaving murder to the jury in the manner that I have. 2 When the Crown Prosecutor opened the case to the jury he described the manner in which the deceased was tied up and abandoned and mentioned that the accused Ian Styman had made a telephone call to the emergency services number. The Crown Prosecutor continued - The Crown says that this call is evidence that the accused realised the seriousness of the situation in which they had left the deceased. The Crown says they realised that left unattended she would be unable to free herself and would die. The Crown also says the accused cannot exonerate themselves from the events by one call to the police. The Crown says it was incumbent upon them to ensure the deceased was in fact rescued and they well knew unless someone came to her assistance she would surely die. The operator at triple zero thought the call was a hoax and it was not followed up. As the Crown says, it was the duty of the accused to ensure the deceased was in fact rescued. 3 During the trial the Crown gained the advantage of sworn evidence from the accused Shannon Styman. He had pleaded guilty at the commencement of the trial to the charge of aggravated robbery. Apart from the offence charged in the last count in the indictment, aggravated sexual intercourse without consent, which Shannon Styman swore was not committed, his evidence was generally consistent with the Crown case. The Crown substantially adopted as accurate his description of the manner in which and the times at which the accused prepared and executed their attack on the deceased. There seems no reasonable basis, if the jury accept Shannon Styman's account as reliable, for them to reject his evidence about the details of what happened, particularly about the times that the accused entered and left the deceased's house and the circumstances in which Ian Styman made the telephone call to emergency services. Accordingly, counsel for Shannon Styman invited the jury to be satisfied that the three accused left the deceased's house at about 4.30 am and jointly telephoned emergency services at 4.54 am and the Crown Prosecutor made no submission to the contrary. Although the Crown Prosecutor invited scepticism about whether the accused really expected (or even intended) the deceased to be rescued by the police following the telephone call he never suggested any alternative reason for making the telephone call and I considered his submissions in that respect to be without substance. Accordingly I directed the jury that if any accused abandoned the deceased intending to alert the authorities with the intention or expectation that the deceased should be rescued by the police they could not be satisfied beyond reasonable doubt that at that time that accused fully realised that the deceased would probably die. See the remarks of the members of the Full Court of the Supreme Court of South Australia in R v Hallett [1969] SASR 141 at 155. 4 The telephone call did not achieve its intended effect and the deceased was not rescued. She died at a time estimated at between nine and eleven days after the making of the telephone call. It was necessary to consider what significance if any ought to be given to the events which followed the telephone call. Defence counsel argued at the time of the no-case submission and continued to submit that those events had no significance and could not be taken into account to ground a charge of murder. Everything ended, they said, with the telephone call, by which time the act causing death was complete. Since no reasonable jury could find that any accused then fully contemplated the probable death of the deceased, each must be acquitted of murder. Counsel also submitted, inconsistently I thought, that a conviction for manslaughter by criminal negligence could follow, based on breach of duty. 5 It is convenient first to consider whether any accused came under any duty the failure to perform which might constitute an omission causing death. 6 The act causing death was undoubtedly the binding, gagging and abandonment of the deceased. By the time her attacker or attackers left her house she had been rendered unable to move to any significant extent, call for help, eat or drink. She died of dehydration. A number of pieces of evidence combine to show that the accused desired the deceased to be rescued having suffered no more harm than would ordinarily be consequent upon the binding and gagging. The last such event was the telephone call. 7 The evidence shows that no accused made any attempt after that telephone call to have the deceased delivered from the danger in which she had been deliberately left. What then, if any, was the obligation of any responsible accused between the time of the telephone call and the death of the deceased? 8 There exist well-recognised categories of circumstances which give rise to a legal duty in one person to act in a particular way towards another, a failure to perform which will render the obligated person liable to be dealt with criminally. Such categories have been listed in a number of cases, for example R v Taktak (1988) 14 NSWLR 226, R v Joukhadar Court of Criminal Appeal, New South Wales, 13 June 1975, unreported, People v Beardsley 113 NW 1128 (1907), R v Lawford (1993) 61 SASR 542. I gratefully adopt the judgment of Yeldham J in R v Taktak at 236-245. 9 There can be no liability for nonfeasance unless there is a legal, as opposed to a moral, duty to act: R v Taktak; R v Joukhadar; People v Beardsley. So an innocent bystander has no legal duty to rescue a drowning man. However, a person may by voluntary conduct convert a moral obligation to a legal one. Examples are R v Gibbins and Proctor (1918) 13 Cr App R 134, where a woman assumed responsibility to care for the child of her de facto husband, R v Nicholls (1874) 13 Cox CC 75, where a woman took on the care of her grandchild. In R v Marriott (1838) 8 Car & P 425 the prisoner, who was convicted of manslaughter on an indictment for murder, had taken an aged and infirm woman and confined her against her will and had not provided her with the food, clothing and medicine she needed to sustain life. 10 In People v Beardsley McAlvay CJ said this at 1129-1130 - The law recognizes that under some circumstances the omission of a duty owed by one individual to another, where such omission results in the death of the one to whom the duty is owing, will make the other chargeable with manslaughter … This rule of law is always based upon the proposition that the duty neglected must be a legal duty, and not a mere moral obligation. It must be a duty imposed by law or by contract, and the omission to perform the duty must be the immediate and direct cause of death … Although the literature upon the subject is quite meager and the cases few, nevertheless the authorities are in harmony as to the relationship which must exist between the parties to create the duty, the omission of which establishes legal responsibility. One authority has briefly and correctly stated the rule, which the prosecution claims should be applied to the case at bar, as follows: "If a person who sustains to another the legal relation of protector, as husband to wife, parent to child, master to seaman etc, knowing such person to be in peril, wilfully and negligently fails to make such reasonable and proper efforts to rescue him as he might have done, without jeopardizing his own life, or the lives of others, he is guilty of manslaughter at least, if by reason of his omission of duty the respondent person dies. So one who from domestic relationship, public duty, voluntary choice or otherwise has the custody and care of a human being, helpless either from imprisonment, infancy, sickness, age, imbecility, or other incapacity of mind or body is bound to execute the charge with proper diligence, and will be held guilty of manslaughter if by culpable negligence he lets the helpless creature die". 11 Dealing with the English cases of R v Nicholls and R v Instan [1893] 1 QB 450, the Chief Justice continued at 1130 - The charge of this nisi prius judge recognizes the principle that a person may voluntarily assume the care of a helpless human being, and, having assumed it, will be held to be under an implied legal duty to care for and protect such person; the duty assumed being that of caretaker and protector to the exclusion of all others. 12 In R v Taktak Yeldham J identified at least four situations where failure to act might constitute breach of a legal duty, namely where a statute imposes a duty to care for another, where one stands in a certain status relationship to another, where one has assumed a contractual duty to care for another and where one has voluntarily assumed the care of another and so secluded the helpless person as to prevent others from rendering aid (at 243-244). 13 The facts of R v Taktak were as follows. The appellant was a drug addict who procured for a heroin dealer the services of two prostitutes. He took them to a party held by the dealer. The prostitutes took heroin at the party. Later on, in response to a telephone request, the appellant went to certain premises to collect one of the prostitutes. He found her sitting on the floor of a building moaning and unable to speak. He took her by taxi back to his own premises. He realised that she had taken heroin. He tried unsuccessfully to wake her. He did not summon medical help. She failed to recover consciousness and died. Yeldham J concluded at 246 that the critical question was whether there was evidence that the appellant had voluntarily assumed the care of the deceased "and so secluded the helpless person so as to prevent others from rendering aid". 14 In R v Lawford the Court exemplified at 547-548 situations in which a duty might arise, including this - (vi) where the defendant has himself put a person in danger by a wrongful act, he is probably under a duty not to leave that person in danger. 15 There is a related question, namely whether it is correct or preferable to categorise what caused death as an act followed by an omission or as a continuous act, commencing when the deceased was attacked and ending when she died. Ultimately the Crown submitted that either approach was permissible. 16 This question has been considered in a number of cases. In R v Miller [1980] 2 QB 532 the appellant lay on a mattress with a lighted cigarette and set fire to it when he fell asleep. He awoke and realised that the mattress was smouldering. He did nothing about it but moved to another room in the premises, where he was a squatter. The house caught fire and the appellant was charged with arson. In due course he was convicted and appealed. The problem said on appeal to arise was the lack of coincidence between the act which caused the fire, namely the accidental setting fire to the mattress, and the state of mind necessary for arson, which did not arise until later on when the appellant arose and realised that the mattress was on fire. The Court held that although the actus reus and mens rea normally had to coincide, here the conduct of the appellant had to be looked at as a whole. If as a whole it contained the actus reus and the relevant mens rea they were sufficiently coincident. An unintentional act followed by an intentional or reckless omission to rectify it or its consequences could … amount to an intentional or reckless act – an adoption by a deliberate or reckless failure of what the appellant had unintentionally done earlier on. 17 The Court of Appeal certified for appeal to the House of Lords the question whether the actus reus of the offence of arson was present when the appellant accidentally started the fire and thereafter, intending to destroy or damage property belonging to another or being reckless whether such property would be destroyed or damaged, failed to take any steps to extinguish the fire or prevent damage. Lord Diplock said this at [1983] 2 AC 176 - I cannot see any good reason why, so far as liability under criminal law is concerned, it should matter at what point of time before the resultant damage is complete a person becomes aware that he has done a physical act which, whether or not he appreciated that it would at the time when he did it, does in fact create a risk that property of another will be damaged, provided that, at the moment of awareness, it lies within his power to take steps, either himself or by calling for the assistance of the fire brigade if this be necessary, to prevent or minimise the damage to the property at risk. Let me take first the case of a person who has thrown away a lighted cigarette expecting it to go out harmlessly, but later becomes aware that, although he did not intend it to do so, it has, in the event, caused some inflammable material to smoulder and that unless the smouldering is extinguished promptly, an act that the person who dropped the cigarette could perform without danger to himself or difficulty, the inflammable material will be likely to burst into flames and damage some other person's property. The person who dropped the cigarette deliberately refrains from doing anything to extinguish the smouldering. His reason for so refraining is that he intends that the risk which his own act had originally created, though it was only subsequently that he became aware of this, should fructify in actual damage to that other person's property; and what he so intends in fact occurs. There can be no sensible reason why he should not be guilty of arson. If he would be guilty of arson, having appreciated the risk of damage at the very moment of dropping the lighted cigarette, it would be quite irrational that he should not be guilty if he first appreciated the risk at some later point in time but when it was still possible for him to take steps to prevent or minimise the damage. and at 178 –179 - The recorder, in his lucid summing up to the jury (they took 22 minutes only to reach their verdict), told them that the accused, having by his own act started a fire in the mattress which, when he became aware of its existence, presented an obvious risk of damaging the house, became under a duty to take some action to put it out. The Court of Appeal upheld the conviction, but its ratio decidendi appears to be somewhat different from that of the recorder. As I understand the judgment, in effect it treats the whole course of conduct of the accused, from the moment at which he fell asleep and dropped the cigarette onto the mattress until the time the damage to the house by fire was complete, as a continuous act of the accused, and holds that it is sufficient to constitute the statutory offence of arson if at any stage in that course of conduct the state of mind of the accused, when he fails to try to prevent or minimise the damage which will result from his initial act, although it lies within his power to do so, is that of being reckless whether property belonging to another would be damaged. My Lords, these alternative ways of analysing the legal theory that justifies a decision which has received nothing but commendation for its accord with common sense and justice have, since the publication of the judgment of the Court of Appeal in the instant case, provoked academic controversy. Each theory has distinguished support. Professor J C Smith espouses the "duty theory" (see [1982] Crim LR 526 at 528); Professor Glanville Williams who, after the decision of the Divisional Court in Fagan v Metropolitan Police Comr [1968] 3 All ER 442, [1969] 1 QB 439 appears to have been attracted by the duty theory, now prefers that of the continuous act (see [1982] Crim LR 773). When applied to cases where a person has unknowingly done an act which sets in train events that, when he becomes aware of them, present an obvious risk that property belonging to another will be damaged, both theories lead to an identical result; and, since what your Lordships are concerned with is to give guidance to trial judges in their task of summing up to juries, I would for this purpose adopt the duty theory as being the easier to explain to a jury; though I would commend the use of the word "responsibility", rather than "duty" which is more appropriate to civil than to criminal law since it suggests an obligation owed to another person, ie the person to whom the endangered property belongs, whereas a criminal statute defines combinations of conduct and state of mind which render a person liable to punishment by the state itself. and at 175-176 - Since arson is a result-crime the period may be considerable, and during it the conduct of the accused that is causative of the result may consist not only of his doing physical acts which cause the fire to start or spread but also of his failing to take measures that lie within his power to counteract the danger that he has himself created. And if his conduct, active or passive, varies in the course of the period, so may his state of mind at the time of each piece of conduct. If, at the time of any particular piece of conduct by the accused that is causative of the result, the state of mind that actuates his conduct falls within the description of one or other of the states of mind that are made a necessary ingredient of the offence of arson by s 1(1) of the Criminal Damage Act 1971 (ie intending to damage property belonging to another or being reckless whether such property would be damaged), I know of no principle of English criminal law that would prevent his being guilty of the offence created by that subsection. Likewise I see no rational ground for excluding from conduct capable of giving rise to criminal liability conduct which consists of failing to take measures that lie within one's power to counteract a danger that one has oneself created, if at the time of such conduct one's state of mind is such as constitutes a necessary ingredient of the offence. I venture to think that the habit of lawyers to talk of "actus reus", suggestive as it is of action rather than inaction, is responsible for any erroneous notion that failure to act cannot give rise to criminal liability in English law. 18 A like assertion of lack of coincidence of actus reus and mens rea was made in Thabo Meli & Ors v R [1954] 1 All ER 373. The four appellants had been convicted of murder in the following circumstances. They set upon a man intending to kill him and beat him on the head with an iron pipe. The victim was thereby rendered unconscious but received no injury sufficient to cause death. Believing him to be dead, the appellants rolled his body over a low cliff and, after tidying up the scene to make it all look like an accident, left him. He died of exposure. The argument was that the convictions for murder could not stand because the act which was admittedly done with intent to kill did not cause death, whereas the act which caused death was not done with intent to kill, the appellants by that time believing the victim was already dead. Delivering the judgment of the Privy Council, Lord Reid said this at 374 - It is said that the mens rea necessary to establish murder is an intention to kill, and that there could be no intention to kill when the accused thought that the man was already dead, so their original intention to kill had ceased before they did the act which caused the man's death. It appears to their Lordships impossible to divide up what was really one series of acts in this way. There is no doubt that the accused set out to do all these acts in order to achieve their plan, and as parts of their plan; and it is much too refined a ground of judgment to say that, because they were under a misapprehension at one stage and thought that their guilty purpose had been achieved before, in fact, it was achieved, therefore they are to escape the penalties of the law. 19 The Court in R v Hallett observed at 156 that when an accused person commits a series of acts as part of one transaction that series should not be split up so as to require mens rea at all stages. It is sufficient if it is present at one essential stage. 20 It seems to me that it is legitimate to describe what caused the death of the deceased as a single continuous act, commencing when she was attacked and ending when she died or as an act, commencing when she was attacked and ending when she was abandoned, and an omission, commencing then and ending when she died. On the authorities which I have cited I think that the jury are entitled to find any accused guilty of murder who had the relevant state of mind during the continuous act. If that be so, it seems to me impossible reasonably to argue that the same result may not follow if the same state of mind arises at any time after the commencement of the act as secondly defined and during the period of the omission. However the cause of death is categorised it seems accurately to be able to be described as a single transaction. If the Crown can prove it and if it can also prove that during its continuance any accused had the necessary state of mind, then that accused ought to be found guilty of murder. 21 I note that in R v Miller the House of Lords regarded the conduct of the appellant as really an omission. I prefer also to regard the events following the telephone call as evidence of an omission on the part of any responsible accused. That is for two reasons. The first is that common sense suggests that that is what it was. The second is that in summing up the case on the alternative offence of manslaughter by criminal negligence it is necessary to deal with the consequences of an omission to fulfil the selfsame duty to see the deceased delivered from danger. 22 I therefore determined that the proper formulation of murder for the jury should include a direction that any person who deliberately puts another in danger comes under a legal duty to take steps to remove that danger and that any failure to do so may constitute an omission causing death. If at any time during the period of omission that accused has the relevant state of mind, whatever it may have been at the commencement of the period of omission, the jury are entitled to find the accused guilty of murder. 23 There are two other matters that I must deal with. The first comes from a submission that the omission would lead to liability in manslaughter but not in murder. There is plenty of authority to the effect that an omission to fulfil a duty, if it causes death, may lead either to murder or to manslaughter depending on whether the Crown can prove what is necessary for murder or manslaughter. It would be surprising if it were not so. In R v Conde (1967) 10 Cox CC 547 the two accused withheld food from their child, who died of starvation. The jury were directed that if the accused wilfully withheld necessary food with a wilful determination by withholding sustenance which was requisite to cause death then the accused were guilty of murder but that if they had the means to supply necessaries the want of which led to the death of the deceased and that they negligently though not wilfully withheld food which would have sustained life that would amount to the crime of manslaughter. 24 R v Gibbins and Proctor was a case based on the withholding of essential food from a child, who died. Murder and manslaughter were left to the jury and the conviction was for murder. 25 In R v Lowe (1850) 3 CAR & K 123 Lord Campbell CJ said at 124 that a man may by neglect of duty render himself liable to be convicted of manslaughter or even of murder. 26 In R v Shepherd (1861) Le & Ca 3 147 at 155 Erle CJ said that the cases where the person whose death is caused has been brought into circumstances where he cannot help himself, as by imprisonment by the act of the party charged, are distinguishable from other cases (which would lead to manslaughter). 27 In R v Marriott it was held that a verdict of guilty of murder was available if the accused contemplated death whereas it would be manslaughter if death were occasioned by negligence. 28 It seems to me in the present case that any breach of a duty to remove the deceased from danger into which she had been deliberately put is capable of leading to a verdict of guilty of murder if in the case of any accused the jury are satisfied that at any relevant time he acted with reckless indifference, and otherwise to a verdict or guilty of manslaughter by criminal negligence if the Crown proves the objective seriousness of the breach. 29 The final point deals with the telephone call itself. It was submitted, and may be accepted, that the evidence establishes that Ian Styman on behalf of all accused fully expected that the message would be acted upon and that the deceased would be rescued substantially unharmed. It was submitted or implied that each accused was entitled to expect that she would be so rescued and that the obligation of the accused was thereby in some way extinguished. The submission was not developed in any detailed way and may be seen as calling in aid some principle of novus actus interveniens or some other principle by which the liability of any responsible accused was thereby determined. 30 No doubt the reasonable expectations of any accused on whose behalf the telephone call was made is relevant to the question whether the accused acted with reckless indifference to human life. It seems to me, however, that it has nothing to do with causation. If the telephone call had been responded to, evidence of what then happened might have become relevant to causation. But nothing did happen. The only things that caused the death of the deceased were the acts of those who attacked her and left her without relief. If it were necessary, one could look to R v Hallett for support for this conclusion. The Court said at 149 - It does not matter on the question of causation whether or not the accused after the commission of his act fails to appreciate or takes unavailing steps to avoid its probable consequences or mistakenly thinks he has taken such steps or fails to take such steps through some supervening factor unless that supervening factor so interrupts the effect of the original act as to prevent that original act from being in the eyes of the law the cause of death. ************ Last Modified: 02/12/2003 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.