New South Wales Court of Criminal Appeal 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 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 CASES CITED : 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 Ian Craig Styman - Appellant PARTIES : Peter David Taber - Appellant Crown FILE NUMBER(S) : CCA 2003/3228 (60327/03); 2003/3044 (60326/03) Mr J C Papayanni for the Appellant Styman COUNSEL : 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 COURT Supreme Court JURISDICTION : LOWER COURT 70210/02; 70212/02 FILE NUMBER(S) : LOWER COURT Barr J JUDICIAL OFFICER : - 1 - IN THE COURT OF CRIMINAL APPEAL 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 1990 172 CLR 378 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: 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 (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. ********** IN THE COURT OF CRIMINAL APPEAL 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." Ultimately, the Crown case against each accused was based on an omission which caused Mrs Alchin's death when at the time of the omission the accused fully realised that the omission would probably cause her death. 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: "No one there" "Hello" "Oh, hello" "Could you send a car out please?" "Where to?" "Spies" "Where?" "Spies Avenue, Greenwell Point" "What's happening there?" "There was a couple of blokes that went in with guns, second house from the corner" "What do you mean … a couple of blokes went in?" "That went in the house, there's a little old lady there…" "Break and enter?" "I can't talk but they're, they're here .." "What…what number?…" Ian Styman then terminated the call. 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: "In view of the post-mortem appearances, the relational temperatures for the period and the absence of attack by flies and maggot infestation until after the body was found and taking into account Dr Ryan's assessment (with which I agree), in my opinion death most likely occurred two to four days prior to the autopsy, that is any time between 16 and 18 January 2001, but death occurring even before 16 January cannot be entirely excluded. [Emphasis added.] 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: "2.0 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. … 3.00 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. 88 Paul Styman was a brother of Ian Styman. He gave evidence that Ian, Shannon and Taber came up to Queensland in the latter part of February 2001 for the purpose of work. He overheard a conversation between Taber and Leonie Ravell. Taber said: "If it wasn't for you, we wouldn't be in this shit". Paul Styman took this to mean that Leonie had wanted to drive back to New South Wales. 89 Terry Daniel Wilke did building work for Taber. He gave evidence that in February 2001 Taber was going to Queensland. He told Wilke that the police were accusing him of Mrs Alchin's murder. Wilke asked him if he had done it. Taber said he had not. 90 The Crown called several witnesses to give evidence that Taber was not very financially secure before January 2001. He was often short of cash and borrowed money from people including his father, David George Taber. David Taber gave evidence that Taber would at times be short of cash and would ask for money in exchange for cheques. He had lent Taber a few hundred dollars before 23 December 2000. Taber also sought advances from employers who contracted him for building work and sought advance payments for building work being undertaken. He did this because he was short of money for himself and for the payment by him of wages to his workers. He also pawned electrical items, including a mobile phone, during 1999 and 2000 for loans ranging from $50 to $170. He would repay the loans in accordance with his agreement with the pawnbroker. On 8 January 2001 he repaid his most recent loan and interest in the amount of $360. Evidence of the finances of Taber and Ian Styman, before January 2001, was supported by various banking records tendered. 91 Meegan Herne, who had met Leonie Ravell at the end of 2000, gave evidence that Taber was like everyone else, tight with money until pay day. Taber and Leonie had plans to go to Queensland after Christmas but as far as she knew they had a quiet New Year and did not go. Melinda Ravell gave evidence that, a few weeks before Christmas 2000, Taber asked to borrow a couple of thousand dollars to go to Queensland but Melinda did not have the money. On Christmas Day, Melinda and Leonie came to their mother, Cheryle's, house. Taber said he had "hocked" his tools so as to have money to spend. He had about $200 in his wallet. 92 Meegan Herne said she had had conversations with Leonie about Mrs Alchin lending money to her mother and sister and that legal action was begun when the money was not repaid fast enough. Herne could not recall if Taber was present during these conversations. 93 Donyelle Louise Turner gave evidence that she moved into the premises at 211 Old Southern Road just before Christmas 2000 where she was present during a conversation with Taber and Leonie in the lounge room. She was renting a room from Taber and Leonie from Christmas 2000. Taber and Leonie were discussing the need for a few thousand dollars for a holiday. Taber suggested to Leonie that they ask Melinda for a loan. Taber rang Melinda on his mobile and went outside. When he returned he said that Melinda could not lend them the money. Taber then suggested that they visit Mrs Alchin to see if she could lend them money but Leonie did not want to go because she knew that others had borrowed money from Mrs Alchin before. Turner, Leonie and Taber were all together in the lounge room. Leonie expressed her disappointment about Mrs Alchin's refusal to lend them money and said "we can always kill her … not that anybody would notice… because no one ever saw her". Taber responded that somebody would notice that she was gone. Turner said that Leonie then said that "nobody would notice because nobody saw her anyway and her Mum hadn't seen her for a while" and that she and Melinda had planned it a while ago. Turner thought they were joking around. She conceded in cross-examination that there was a possibility that she was mistaken about Taber being actually present at the conversation. In cross-examination, Turner agreed that she had often smoked cannabis while living in the house, but she denied that she was ever in a "stoned" state. 94 The Crown led evidence that from January 2001, both Taber and Leonie had bought items of value. Leonie also appeared to have been carrying a lot of money when she went shopping. Cheryle gave evidence that in January 2001 she went shopping with Leonie who had money on her, in particular a couple of grey $100 notes. Cheryle asked Leonie about the money and was told that Taber had paid her back for rent money. Leonie bought a 68 inch TV, a PlayStation and a second hand fridge and washing machine. This was probably a week before Cheryle found out that Mrs Alchin had died on 19 January. 95 Melinda gave evidence that on 8 January 2001, she went to Taber's house and saw Taber installing a fridge in the kitchen. Taber said he had bought it from the hock shop. A week or so later Melinda saw a new TV and other appliances. She recalled they had conversations suggesting that the items had been purchased that week. 96 On 7 January 2001, Meegan Herne went to Melbourne. She returned on 14 January 2001. When she went to 211 Old Southern Road she noticed that it was newly furnished with a stereo, a TV, a PlayStation, new fishing gear and new decorations, as well as new shoes and clothes. She stayed there for a week and went shopping with Leonie in Nowra. Meegan Herne noticed that Leonie had "quite a bit" of money on her and was buying things she would probably never use; that Leonie could not fold her wallet because there was so much money in it; and that Leonie had about half a centimetre of old $100 notes and not many new ones. She and Leonie bumped into Ian Styman. Meegan Herne noticed that he had a new Suzuki Soft Top. 97 On 3 January 2001, Donyelle Turner went to Sydney. She stayed until 16 January 2001. While she was away she received a call from Taber asking her how she was going to pay the rent. She told him that she had organised it with Leonie who was to cover her while she was away. Taber was not happy with this arrangement, so she offered to deposit the money in his bank account which she did in an amount of $45. When she arrived back at 211 Old Southern Road she noticed similar items as those noticed by Meegan Herne, and Cheryle and Melinda. During the week, Taber bought a new fishing rod and Leonie bought clothes. On 17 January 2001, Turner went shopping with Leonie and noticed Leonie buying items which made Turner suspicious. That night when Taber and Leonie went out, Turner went into their bedroom and looked through Leonie's wallet. She saw three or four old $100 notes and a few newer notes, totalling $900. She also noticed a paid mobile phone bill for around $500. 98 Sarah Burgess worked at Nowra K-Mart as a check-out operator. She met Leonie. One day Leonie and her boyfriend came through the check-out with two trolleys filled with household items totalling about $1,500. Taber handed Leonie the money which she then handed to Burgess in old $100 notes. Burgess identified the receipt she issued which had been found by police during a search of 211 Old Southern Road. Ian Styman and Taber also made purchases in cash using old $100 notes during January 2001. 99 On 7 January 2001, Ian Styman bought a Suzuki Sierra from Alan Stoker. Stoker placed the ad in the Trading Post and met three males and a female for the car to be inspected. It was taken for a test drive. One of the males agreed to buy it for $4,300. This male went to a Hyundai and returned with the cash in old $100 notes. A receipt was made out to Ian Styman though wrongly dated 8 January 2001. A certificate of registration for this vehicle noted the transfer of the registration to Ian Styman. 100 On 7 January 2001, Taber bought a white Ford Utility from a car dealership in Villawood. Mustafa Batak was the salesman. He recalled two males and a female were present during the sale. One of the males had a beer gut. He said they needed a cheap utility. The price agreed on was $1,400. The white utility was bought on condition that the exhaust was repaired that day. The other male told Batak that they had the cash and showed Batak a bum bag containing a roll of money, about 2 inches thick. A contract was drawn up in Taber's name, though the sale price on that contract was $100. The paper work was completed in the office where the other male handed over the money to Taber. The money was counted and Batak noted that it was in old $100 notes, which he identified as similar to one which had been handed by Taber to Detective Senior Constable Davies during the search of Taber's house. Batak commented about these old notes and Taber said they were still in use in Nowra. The owner of the car dealership also counted the money and saw that it was comprised of old $100 notes. He asked Taber where he got the money from because he had not seen that money around. Taber said that it was still around. 101 On 8 January 2001, a male with a young woman and two children looked at a Honda motor bike which had been advertised for sale by Martin and Patricia Carter. It sold for $900, which was paid in cash. Mrs Carter was unable to recall what type of notes were used though she believed they were $50 notes. Mr Cater believed that the notes were "more like paper currency rather than plastic notes" but could not be sure. A receipt was issued in the name of Shannon Styman. 102 Evidence from banking institutions and the Reserve Bank was that new $100 notes came into circulation on 15 May 1996. No $100 notes were issued from ATM machines in Nowra. Cheryle had worked as a bar attendant at the Greenwell Point Bowling Club. She had once seen an old $100 note pass through the club. She recalled it because she did not see those notes "that often". Evidence from Australia Post was that no "cash" mail had been sent to Ian Styman from November 2000 to January 2001. 103 On 24 January 2001, after Taber returned to 211 Old Southern Road from Nowra Police (following the search of his house), there were several people still at the house. Taber was asked by Cheryle about the money she had seen with Leonie and if he had any old notes. Meegan Herne told Taber she had also seen old notes. Taber said he may have had one or two. Cheryle told him she had seen more of these notes. Taber said he had sold a shed and was paid in old notes and that his employer had paid him in old notes. Cheryl and Melinda expressed scepticism. Taber said his father had lent money to him. 104 In cross-examination, Marie Rose Gale, a sister of Mrs Alchin, who was also present at the house, said that Taber also said he had $8,000 in old notes and was owed another $5,000. 105 A discussion took place about what had happened at the Police Station. Taber made a call on his mobile phone. Ian Styman came by and picked up Taber in his Suzuki 4WD. Someone else was in the back seat. Taber left the house and returned later. Later Meegan Herne saw Taber, Ian and Shannon Styman in the 4WD at a service station. Taber arrived home around half an hour afterwards. He was upset because the police had taken all the new things he had worked very hard for. 106 Taber said that if he had parked his ute on the other side of the road the police could not have touched it. Meegan Herne said in cross-examination that in this conversation he had been referring to a $100 note the police had taken off him. Evidence was led from other persons who had paid Taber for building work he had undertaken. This was to the effect that he had been paid by cheque or in cash in new notes. 107 The Crown tendered mobile phone records. On 7 January 2001, at 3.25 am, a 9 second call was registered on the Nowra tower from Taber's mobile phone to Ian Styman's mobile phone. At 5. 25 am, there was a call to Vodafone, which registered on the Mount Cambewarra tower which was further north. On 7 January 2001, at 4.31 am, there was a call from Ian Styman's mobile phone to Taber's mobile phone which was listed as a diverted call and lasted for 2 seconds. A call made at 5.09 am to Vodafone registered on the Nowra tower and at 6.07 am registered on the Saddleback Mountain tower. From 9.42 am there were a series of calls registered on the Merrylands tower. 108 Gareth Arthur Simmons, from Vodafone, gave evidence that the strongest cell that picks up a mobile call is generally the closest one. If a phone call was made from the Greenwell Point area, in which Mrs Alchin's house was located, the most likely receiving site would be the Nowra site. Simmons and Detective Sergeant Angelo Memmolo conducted an experiment using Ian Styman's mobile number by making calls from 1/16 Frederick Street, Sanctuary Point, Ian Styman's house, and then from the corner of Sanctuary Point Road and Paradise Road. The Nowra site did not register on any of these calls. 109 The Crown relied on this evidence to show that Ian Styman and Taber were not at their respective houses when the calls were made. 110 Ian Styman was interviewed by police on three occasions, once on 3 March 2001 and twice on 26 March 2001. 111 Ian Styman was questioned about money he had earned and spent. He had paid for his Suzuki in new notes with money accumulated from work. He denied having paid with old notes. He had not been near Taber when Taber purchased the white ute on 7 January 2001. At that time, Ian was across the road in Taber's mother's white Hyundai. He did not know how Taber paid for the ute. 112 Ian Styman did not recall what he was doing on 5, 6 and 7 January 2001 though he would have had no reason to be out in the early morning. He denied having been out on the night of 6 January 2001, though he may have gone to Taber's house and then to another person's house in relation to a boat. He had returned home before midnight. He denied having ever been to Mrs Alchin's house and said he did not know her. He was questioned about the call made from his mobile at 3.25 am on 7 January 2001. He could not explain what the call was about nor why it had registered from the Nowra tower. 113 Ian Styman was also asked about calls tapped by police in which he spoke of his concern in relation to DNA evidence. He said he had become concerned about DNA being planted after a detective had told him he would be going down, no matter what. He denied ever speaking to John Styman about interfering with DNA results. 114 Ian Styman told police he had gone to Taber's house, on 24 January 2001 after Taber returned from the police station, because he wanted to know why Taber had told police he had money in his bum bag. Ian denied having a bum bag when he went to Sydney to buy a car. Sergeant Angelo Memmolo denied in cross-examination that following the interview of 3 March 2001, he told Ian, "You're going down for this no matter what". 115 Taber was interviewed by police on 24 January 2001. During this interview he was questioned about the money he used to make the purchases he made (such as his car and the purchases from Nowra K-Mart) and in particular how he managed to be in possession of old notes. He said he had accumulated money from jobs he had done and that he was sometimes paid with old notes. He kept the money he was accumulating hidden from Leonie and usually at his parents' house. He denied there had ever been an attempt to borrow money from Mrs Alchin or that there had been a conversation about killing her. He said he did not know of Mrs Alchin having a substantial amount of cash; he did not know her. 116 During the interview with Taber this interchange occurred: " … we had two rolls of grey duct tape. A. Yeah. Q. Where did they come from? A. Um, South Nowra servo. Q. The purpose of having those rolls of tape is for what, can you tell me that please? A. Um, well you also found some in the back of me ute wrapped up. Q. Two rolls of it, yes. A. Yeah, What we do is because the steel we use is so light um, we wrap the tape around it to hold it all together then you can sit it all on your ute in one bundle, tie it down, just basically to, and the same with um, … from … and stuff like that. Yeah, 'cause, 'cause you can't tie them down, like you've, you've got a, a ridge on an angle, the steel angle like that. If you go to tie that down with a rope … Q. Mr Taber, do you, do you have cause to use those ties, … A. Yeah. Q. … plastic ties? A. Yeah." No case to answer submission 117 After the Crown closed its case on the thirty-sixth day of the hearing, 31 October 2002, counsel for each of the accused submitted that his client had no case to answer on the count of murder and applied for a verdict by direction. Barr J refused these applications for reasons given in a judgment on 1 November 2002. 118 At this stage critical to Barr J's reasoning that the charge of murder should be left to the jury, was his view that, despite the 000 call, it was open to the jury to find, that the binding, gagging and abandonment of Mrs Alchin caused her death and that the evidence against each accused was capable of establishing that at the time of the act causing death the accused realised that death would probably occur but continued with his course of conduct regardless. 119 On 6 November 2002, Barr J made some further remarks to be incorporated into his earlier judgment. In particular he referred to Lawford & Anor v R (1993) 61 SASR 542, a decision of the Full Court of South Australia. The failure of the accused to rescue Mrs Alchin from the danger into which she had been deliberately put could be treated as an omission by the accused causing death. For reasons which Barr J gave, he said he did not think it appropriate to leave the case to the jury as one in which the accused were said to have caused the death of Mrs Alchin by omitting to perform any duty. The events were better seen by being categorised in the usual way as acts causing death. As will appear, his Honour did not adhere to that view. Further judgment on no case submissions 120 On 11 December 2002 (the day when the jury returned its verdicts), Barr J delivered further reasons for judgment "On the basis on which murder should be left to the jury" (reported in 56 NSWLR 443). He observed that his added remarks on 6 November 2002 indicated he was unsure whether the events occurring between the time of the attack on Mrs Alchin and the time of her death were properly to be regarded as a single continuous act or as an act followed by an omission. His Honour went on to say that, following his remarks of 6 November and before counsels' closing addresses began, he made it clear that he 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 Mrs Alchin from the danger in which she had been put combined with a realisation, at any time during the period of omission and ending with her death, that she would probably die. The judgment of 11 December 2002 recorded his Honour's revised reasons for leaving the counts of murder to the jury and his Honour's reasons for the way those counts were left to the jury in the summing up. 121 By the time Barr J came to sum up to the jury, he accepted that if any accused had abandoned Mrs Alchin intending to alert the authorities with the intention or expectation that Mrs Alchin should be rescued by the police, the jury could not be satisfied beyond reasonable doubt that at that time that accused fully realised that the deceased would probably die. Inevitably, the Crown case then depended upon establishing beyond reasonable doubt that after the 000 call was made each of the accused omitted to perform a duty owed by that accused to Mrs Alchin accompanied by the full realisation that that omission would probably result in her death. The duty which followed from the accuseds' abandonment of Mrs Alchin, tied and gagged as they had left her, was to take all reasonable and practicable steps to release her after the making of the telephone call. The jury's consideration of whether the Crown had proved beyond reasonable doubt that the accused fully realised that his omission would probably result in Mrs Alchin's death had to take account of the making of the 000 call and whether thereafter the accused fully realised that Mrs Alchin would probably die, assuming her still to be alive. Moreover, the necessary causal relationship, which had to be established, was not between Mrs Alchin's death and the act of binding, gagging and abandonment but between her death and the failure, after the 000 call, to take all reasonable and practicable steps to perform the duty. Barr J accepted that this was the Crown's case but both in his reasons for judgment of 11 December 2002 and from time to time in his summing up his Honour referred to the act of binding, gagging and abandonment as the cause of death and stated the resultant duty not in terms of reasonableness and practicability but in absolute terms. 122 It is clear that causation is a question of fact and, hence, the question whether the Crown had proved the appellants' acts or omissions caused Mrs Alchin's death was not for the judge but the jury to determine. It was clear enough that, as it happened, her death would not have occurred but for the appellants' omission to remove her from danger subsequent to the 000 call. It was also the case that her death would not have occurred but for an instance of serious negligence on the part of the telephone operator in failing to communicate the call to the police. The question was whether, in these circumstances, the death of Mrs Alchin should be regarded as caused by the appellants' omission or, more precisely, that their omission should be regarded as having substantially contributed to her death, was a matter of factual evaluation that should have been left to the jury. We are inclined to the view that the jury would have determined this question adversely to the appellants but, in light of the conclusion that we have reached as to the reasonableness of the murder verdicts, we do not have to decide this point or whether, if the adverse decision were inevitable, there would nevertheless have been a substantial miscarriage of justice in the sense articulated in Wilde v The Queen (1988) 164 CLR 365 at 371-372 (see also Festa v The Queen (2001) 208 CLR 593). 123 Barr J referred to several cases in which were listed what his Honour described as well recognised categories of circumstances which gave rise to a legal duty in one person to act in a particular way towards another, a failure to perform which would render the obligated person liable to be dealt with criminally. Amongst these were R v Taktak (1988) 14 NSWLR 226 at 236-245. His Honour quoted from the judgment of McAlvay CJ in People v Beardsley (1907) 113 NW 1128 at 1129-1130. There the Chief Justice said: "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." 124 So stated, the principle has ready application to relationships giving rise to such a duty. Reference was made to the legal relation of protector, as husband to wife, parent to child, master to seaman, knowing such person to be in peril and to proper efforts to rescue without jeopardising the life of the person owing the duty or the lives of others. Failure to make such reasonable and proper efforts could result in the person being guilty of manslaughter "at least" if by reason of the omission of duty the person to whom it was owed died. Barr J referred to four situations, identified by Yeldham J in Taktak where failure to act might constitute a breach of legal duty. These were the statutory duty to care for another, a certain status relationship to another, assumption of a contractual duty of care to another and a voluntary assumption of care to another. 125 With more particular relevance to the present case, in Lawford at 547-8, the South Australian Full Court said that a duty not to leave a person in danger might arise where the defendant had put that person in danger by a wrongful act. 126 Barr J referred to R v Miller [1980] 2 QB 532 (Court of Appeal) [1983] 2 AC 176 (House of Lords). In that case the appellant, a house squatter, fell asleep on a mattress with a lighted cigarette and the mattress caught fire. The appellant awoke and realised that the mattress was smouldering. He did nothing about it but moved to another room in the premises. The house caught fire. The appellant was charged with arson. He was convicted and appealed. The question of law involved ([1983] 2 AC at 174) was whether the actus reus of the offence of arson was present when a defendant accidentally started a fire and thereafter, intending to destroy or damage property belonging to another or being reckless as to whether any such property would be destroyed or damaged, failed to take any steps to extinguish the fire or to prevent damage to such property by that fire. Lord Diplock at 174 preferred to speak in terms of the conduct of the accused and his state of mind at the time of that conduct instead of speaking of actus reus and mens rea. He also preferred to speak in terms of "responsibility" rather than "duty". 127 Like arson in the classification referred to by Lord Diplock, murder is a "result crime" not complete unless, and until, the conduct of the accused has caused death. So the period from that immediately before the act and the death may be considerable and the conduct of the accused causative of the result may consist not only of the physical acts but also of the failure to take measures that lie within the accused's power to counteract the danger the accused has created. As the accused's conduct, active or passive, varies during this period so too may the accused's state of mind at the time of each piece of conduct (175). 128 At 175-6 Lord Diplock said: "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…I know of no principle of English criminal law that would prevent his being guilty of the offence.…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 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." 129 In Royall v The Queen (1991) 172 CLR 378 at 390-391, Mason CJ referred to the necessity for coincidence between act and intent and the way in which the deceased met her death. At 458 McHugh J said: "It is trite law that the relevant state of mind and the harm-causing act 'must both concur to constitute the crime' … [but] the state of mind of an accused does not have to coincide with the time of the deceased's death." 130 These statements apply, of course, as much to omissions as to acts. 131 Thus the case against each accused was necessarily one where the Crown had to prove acts by the accused imposing upon him a duty or responsibility to take all reasonable and practicable steps to release Mrs Alchin and his omission after the 000 call to perform that duty accompanied by a realisation that as a result Mrs Alchin would probably die. Summary of the case for the appellant Taber 132 On 5 November 2002 the Crown by leave re-opened its case and called Leonie Ravell. After her evidence was complete, the Crown again closed its case and the cases of each of the accused were opened and evidence given. The appellants each gave evidence, as did Shannon Styman. 133 Taber gave evidence and was cross-examined. He was a friend of the appellant Ian Styman. He moved into 211 Old Southern Road about two or three months before Christmas 2000 because he had formed a relationship with Leonie. He worked as a builder and also did security work, twice with Ian Styman at a caravan park. His uniform was dark pants and bright yellow shirt but on one job at a hotel in Wollongong he wore a blue shirt with a tie. This was on New Year's Eve in 1998/1999. He had never seen the shirts that Sharyn Styman identified. In cross-examination, he said that his uniform was returned to his company employer. 134 Taber knew Peake but did not see much of him. He could not recall ever going to Greenwell Point with Peake, though he said there might have been a time between January and March 2000. Although his counsel cross-examined Peake on the basis that Peake was confused about when he had gone with Taber and Ian Styman to Greenwell Point pub, this had not been on Taber's instructions. 135 Taber said that over December 2000 he did building work at a location past Canberra and remained there between Monday and Thursday travelling back to Nowra on Fridays for the weekend. This job was completed on 20 December 2000. He said he would have been in Nowra on 2 and 3 December. He denied the events described by Peake ever occurred. 136 Taber said he had completed an apprenticeship as a plant mechanic and used cable ties which were found by police in his house and which he said he had bought from K-Mart. He also used duct tape in his building work and for transporting material. He did not have a practice of keeping used duct tape. It would be thrown away. He gave evidence about the duct tape police found in his back yard. He said he had used duct tape on the pool to stop leaking which had been caused by a cat. 137 Taber said that on the night of 5 January he was at home. On 6 January he was home during the morning. At about 4 pm or 4.30 pm, Ian Styman came over on his motor bike with a PlayStation and a racing game. They set it up on the TV. Leonie was out the back in the pool and sunbaking at the time. At about 5.30 pm Shannon arrived at the house. Taber went to McDonalds and when he returned Shannon wanted to know if he could borrow Taber's mother's car to go home. He had asked Ian Styman to give him a lift home but Ian Styman did not have a spare helmet with him so Taber let Shannon take the car. Taber did not drive Shannon home because he had been drinking beer that day and would have been close to the limit. Shannon left at about 6.15 pm. 138 Taber and Ian Styman continued with the PlayStation game as they needed first to qualify for licences. Leonie came in but she did not take much notice of them. Taber argued with her about something and she said she was going to bed. Ian Styman left at about 8.30 or 8.45 pm on his motor bike. He pushed it out of the driveway on to the road and started it there. This was what he usually did at night. Leonie had been in bed for fifteen or twenty minutes. Taber went back inside and stayed on the PlayStation game until about 3 am. 139 At about that time, Shannon showed up at Taber's front door which was open. Taber saw a silhouette and initially thought it was a friend of his. Taber asked him what he was doing there and asked about his mother's car. Shannon said he had left it up the road. He reassured Taber that he had not smashed it but said he had left it up there but he did not want to bring it to Taber's house. Taber wanted to know what was going on because he had originally told Shannon to return the car at 10 am the next day. Shannon told Taber that he thought that he would drop in on Taber before going home. Taber told him that he was meant to go home at 6 pm when he first borrowed the car. Taber became frustrated with Shannon who said: "I did over a drug dealer" or "I robbed a drug dealer". Taber was astonished and said "What the fuck are you doing? Why did you do it in mum's car?" They argued on Taber's front porch, though Taber tried keeping his voice low because Leonie was in bed. In cross-examination, Taber said that from his bedroom he would not necessarily hear an argument on the porch. 140 Taber and Shannon went up the road so that Taber could check on the car. They argued more and Taber rang Ian Styman at around 3.30 am, which explained the 9 second call at 3.25 am as shown in the mobile phone records. Taber told Ian to "Get your arse into town now. Shannon has done something stupid." They arranged to meet across from the Honda shop in South Nowra. He did not want Shannon at his house because he was furious with him and he did not want Leonie to wake up. 141 Taber drove the car to the arranged meeting point. Ian Styman showed up at around 4 am on his motor bike. Taber told Ian Styman "Shannon's just done a drug dealer over in my mother's car." Ian Styman said "So?", Taber said "It's me fucking mother's car." Ian Styman walked up to Shannon and said "What do you think you are doing?" and they argued. Ian Styman then said he wanted to get something to eat, so Taber told him to leave his motor bike at his (Taber's) house and they would go in the car. 142 Ian Styman drove the motor bike to Taber's house and left it there. He was then picked up by Taber in Taber's mother's car with Taber driving and Shannon in the front seat. Ian Styman turned on the light and looked in the back of the car and told Taber to pull the car over. Taber did and Ian Styman got out and asked Shannon what he had done. Ian Styman said "This isn't stuff from a drug dealer's house". Shannon said it was but Ian Styman said, "There's old purses, there's pennies, old jewellery. What have you done?" Shannon then said, "I did an old bag over at Greenwell Point". They argued and Ian Styman asked Shannon where she was now. Shannon said she was "Out there tied up because he had to tie her up to look for the money, but he had found none". Ian Styman told Shannon that he had to go out and untie her, but Shannon said "No she can get free". Ian Styman told him that he had better make sure and told Shannon to ring someone. Shannon refused and Ian Styman said, "You're ringing someone, I'm taking you to the phone box and you're fucking going to ring someone". 143 Ian Styman went into the driver's seat and drove the car to a phone box on Greenwell Point Road. Ian Styman said they would ring the police. Shannon refused so Ian Styman said he would ring. He asked Shannon where the lady was and Shannon said she was in Spies Avenue, Greenwell Point, the second house from the end. Ian Styman walked to the phone box with Taber and he rang 000. 144 After the call they re-entered the car with Ian Styman driving. Taber told Shannon "I want all the shit out of my car", and the car was driven back to Taber's house where it was cleaned out. By now it was around 5 am and Shannon put everything into a bag, including surgical gloves, pennies and jewellery, as well as half a brick, taken from Taber's house and Shannon tied the bag with cable ties. Taber said in cross-examination that he had also seen Shannon put a key into the bag. He had earlier said that he had not seen a key, but his evidence was that he had meant to say that he had not seen the key from close up. 145 Ian Styman then drove the car from Taber's house to Nowra Bridge. Shannon opened the window and threw the bag into the river. I interpolate that Detective Sergeant Memmolo gave evidence that divers were unable to recover any bag from the river. 146 Taber arrived home at about 5.30 am on 7 January and woke up Leonie. The day before he and Ian Styman had organised to go to Sydney to look for cars and he thought that Leonie might want to come along. They had originally planned to go later that day but because of everything that had happened they decided to leave earlier. Leonie came into the car, Taber's mother's white Hyundai, and went to sleep. Taber first drove to his parents' house to collect some of his money ($1,500). The money had accumulated because he had not been up to date with his GST payments. 147 They looked through various car yards. At one point Shannon handed Ian Styman "a wad of cash first and then he passed me a wad of cash". He did not really say anything and the money was in old notes. Taber received $3,000. Ian Styman asked Shannon what that was for and Shannon said "Its for helping me out". Ian Styman asked where it came from and Shannon told him from the robbery. He said he had gotten about twenty-three grand. The $100 note Taber gave to Constable Davies during the search of his house was not part of the money given to him by Shannon. He kept that note in his wallet as a lucky note. 148 Taber took the money because he needed it. He had not paid his tax and he needed a new car and was pretty broke. He bought a ute that day (the white ute in which the police subsequently found the two rolls of scrunched duct tape). At this time Leonie was across the road. They also bought a PlayStation from K-Mart. He used the $1,500 he had brought with him to buy a new TV, a stereo and kitchen items. He recognised the receipt for these. Ian Styman also bought a Suzuki Sierra. They also bought some furniture and Ian Styman bought an entertainment cabinet. After driving back home, Taber parked the ute in his carport and Shannon left with Ian Styman in his Suzuki. Ian Styman's motor bike was left at Taber's house. 149 Taber used the money given to him by Shannon to buy other electrical items and kitchen appliances and to pay other bills. He had lied to Leonie and said he had sold a shed because he knew the money "had been basically obtained illegally by Shannon" and he did not want anyone to know. He agreed that he had lied to Leonie and Melinda Ravell after coming back to his house from the police station on 24 January 2001 by telling them that he had received money from a job in Canberra. He had lied because he did not want them to know what had happened. During an intercepted conversation, he also said that he had been stripped searched by the police. 150 The next day, Taber brought Ian Styman's new entertainment cabinet to Ian Styman's house. He believed his evidence at trial was to the same effect, even though Sharyn Styman gave evidence that Ian Styman brought home the entertainment cabinet on the same day as the new Suzuki and was not cross-examined about that. Taber and Ian Styman spoke about the amount of money they were given. Ian Styman said he did not think that Shannon robbed an old lady. They spoke about the possibility that Shannon had in fact robbed a drug dealer like he had first said. Taber did not see Shannon again between that time and 19 January. 151 Between 7 and 19 January, Taber did not have any idea about the identity of the old lady. Leonie never mentioned Mrs Alchin's name during that time. He had known Leonie for three to four months. He had not considered following up on the 000 call "because I took it that they had gone out" and because of his discussion with Ian Styman that Shannon must have robbed a drug dealer. He had not heard anything on the news about a lady being found tied up and robbed so he assumed that the 000 call had gone through and was checked and found to be bogus. In cross-examination his evidence was that his intention and belief was that the lady would be rescued once the 000 call was made. 152 Leonie eventually told Taber that her aunt was found dead at Greenwell Point. The next day, Ian Styman came to Taber's house and said he had a conversation with Shannon who had told Ian Styman that the house he robbed was covered with police tape. They then realised that the victim had been Leonie's aunt. They were shocked and did not discuss it. Taber had never met Mrs Alchin and had never discussed borrowing money from her. He had never been to her house and was not aware that she kept large quantities of cash. He denied the evidence of Donyelle Turner and denied ever being privy to conversations where Leonie was disappointed about her aunt refusing to lend them money and saying that they could always kill her. 153 Taber kept a book with sketched plans of buildings because he worked in the building industry but he had never sketched a plan of Mrs Alchin's house. Taber's evidence in cross-examination was that before the 000 call when Shannon mentioned the lady lived in Spies Avenue, nothing clicked with him to identify her with Leonie's aunt. Taber's evidence was that the mask found by police during the search of his house on 24 January belonged to his younger brother who had bought it at the Easter Show. The gloves were his mother's, as she was a community nurse. This evidence was corroborated by William Taber. 154 Taber gave evidence that when his panel van and ute were searched at his house he did not recall seeing Inspector Carter around. He could not recall seeing the two scrunched up rolls of duct tape in his ute before police found them and he did not recall putting them there himself. Taber agreed in his evidence that when he was interviewed by police about the use to which he put the duct tape in his building work he had also said, "Well, you also found some in the back of me ute wrapped". This was because he had not taken much notice of it at first, but he later thought about it and realised that he had never kept used duct tape. Taber also gave evidence about a tapped conversation with Leonie in which he told her that police had found two rolls of screwed up duct tape in the back of his utility, but at that time Taber had not really thought about the police finding it. 155 Taber gave evidence that when he was at Nowra Police Station and went into the charge room he was told by Detective Davies that he would be stripped searched, which he then was. Davies, in cross-examination, denied that this happened. Senior Constable Kevin Hugh Pattison (the Custody Officer at the time) gave evidence that Taber was not stripped searched while in his custody. After getting dressed, Taber was told, "Listen mate you tell us everything you know and we'll go easy on you". In cross-examination, Davies agreed that he might have said this to Taber because it was a fact that assistance could be given to people who told the truth. 156 Taber agreed he had told numerous lies to police when he was interviewed, particularly in relation to where he obtained the money to make his purchases. He had lied because he was scared. Taber did not tell the police anything he knew about Shannon because at the time the police were trying to blame him and he thought they would take anything he said the wrong way. 157 Subsequent to his interview, Taber went home and later Ian Styman and Shannon came by in Ian Styman's Suzuki. They all left and drove down the street where Ian Styman asked Taber why he had told police that he had his bum bag when they were in the car yard. Taber denied ever saying that to police and Ian Styman told Shannon that it was his fault and that he had better fix it. 158 Taber was cross-examined about the implausibility of Shannon walking to his house on the afternoon of 6 January on the off-chance that he would get a lift home from Ian Styman and about Shannon showing up at Taber's house at 3 am in the morning when they had arranged for Shannon to return Taber's mother's car the next morning at 10 am, particularly as, on Taber's case, Shannon left the car up the road with jewellery and other items of value. 159 Taber was also cross-examined about why he had telephoned Ian Styman after Shannon showed up at 3 am at his house. Taber explained that he had not known what to do. His call to Ian Styman at 3.35 am lasted 9 seconds. Taber was cross-examined about how Taber managed to arrange a meeting with Ian Styman in that short space of time. 160 Taber was cross-examined about the implausibility of his having chosen to confront Shannon with Ian Styman near the Honda shop. Taber said it was off the highway. Taber was questioned about when he had seen the various items in the back seat of his mother's car. He said it was when they were waiting for Ian Styman at the Honda shop. He did not know why he had told Shannon to get rid of them from his car there and then. He could not explain why Shannon had tipped everything into his back seat in the first place. 161 Taber was concerned about getting rid of the items in the back seat and he could not explain why they drove back to his house after the Honda shop. It was Taber's evidence, that Ian Styman drove his motor bike to Taber's house and parked it in the driveway. He acknowledged Leonie's evidence that she had not heard the sound of a bike around 4.30 am. In cross-examination, Taber said that it took time to wake up Leonie and that she was a heavy sleeper. His evidence was that when he was playing the PlayStation the sound was turned down and the doors were kept closed. 162 Taber was cross-examined about the 2 second diverted call from Ian Styman's mobile phone to Taber's mobile phone at 4.31 am on 7 January. This was at a time when, on Taber's evidence, he was driving back to his house after the Honda shop. Taber could not remember this call. 163 In cross-examination, Taber said that when Shannon threw the bag over the Nowra Bridge he had also thrown a roll of duct tape. His evidence was that it had always been his instructions that it was Shannon Styman who threw the bag and he had never said it was Ian Styman. Taber was cross-examined about why Shannon tied the bag with a cable tie if it was to be thrown out anyway. 164 In cross-examination Taber said that he had been worried about his mother's car being identified in the robbery but he could not explain why he nevertheless agreed to travel to Sydney with Shannon in that car. 165 Taber was also cross-examined about the implausibility of his evidence that Shannon gave money to Ian Styman and Taber as a thank you, when Ian Styman had not helped Shannon but had been angry with him and had insisted they call the police. Taber could not explain why Ian Styman told the 000 operator that more than one person had broken into the house of the lady. Taber said in cross-examination, that his mistake was taking the money from Shannon. 166 Taber called Helmet Glanzer, a communications and software engineer, to give evidence. He had conducted an experiment by taking a mobile phone to Greenwell Point and noting the base stations showing up on the mobile phone. At 23 Spies Avenue, Mrs Alchin's home, two base stations service the area, Princess and Shoalhaven. The Princess base station was most likely serviced by Saddleback Mountain and not Nowra. Half way between Nowra and Greenwell Point the mobile stopped showing the Nowra base station. Mr Glanzer was taken to the call made at 3.25 am on 7 January 2001 from Taber's mobile phone which registered on the Nowra base station. In his opinion the call could not have been made from Spies Avenue. In relation to the second diverted call at 4.31 am from Ian Styman's mobile phone, Glanzer said that it was most likely not picked up and hence was a message bank from Vodafone. 167 Taber also called Gareth Arthur John Simmons, a senior engineer for Vodafone Australia. He gave evidence about the phone records for Shannon's mobile phone. On 6 January 2001, there was a call at 10.29 pm to Vodafone from Saddleback Mountain. Simmons said that this site was on a very high point and the call could have been made at Greenwell Point or anywhere on the low lying area. There were also calls at 4.29 am and 4.32 am on 7 January 2001 made to Vodafone. The Mount Cambewarra site picked up the first call and the second was picked up by Nowra. The fact that these two calls were picked up from both of these different sites meant that the caller was either in the Nowra area or in the borderline of those areas because of the lack of dominance between the two cells. The Mount Cambewarra site was very high and was directed down over the low lying area across the Greenwell Point and Black Forest. When asked if the caller could have been in Greenwell Point, Simmons said, "Given that they picked up the Mount Cambewarra site, that they were probably – the Greenwell Point area is a little bit too far east. They would have most likely picked up the Nowra site first. The fact that they are picking up the Mount Cambewarra site would put them north of Greenwell Point site … or further west." 168 In relation to the second diverted call from Ian Styman's mobile phone to Taber's mobile phone at 4.31 am on 7 January 2001, Simmons said that the diversion could have been caused by the phone losing coverage and a call of two second duration would mean that the caller possibly caught the beginning of a message service and decided not to leave a reply. Summary of the case for the appellant Ian Styman 169 Ian Styman gave evidence and was cross-examined. He said that he first discovered that an elderly lady had been robbed and tied up at Greenwell Point about ten minutes before he made the 000 call, once Shannon had told him what he had done. He admitted lying to the police when he was interviewed because he was afraid of being dragged into something that he did not do. Ian Styman denied the evidence of Peake and said that Sharyn Styman was mixed up when she gave evidence that she had seen him leave the house wearing a blue shirt. In cross-examination, he said that in January 2001 he owned a Kawasaki motor bike and described its noise as being medium. 170 In cross-examination, Ian Styman adopted the evidence he had heard Taber give in respect of the events of the early hours of 7 January 2001. He said he was at home when he received a call from Taber saying that Shannon had done something stupid in his mother's car. Taber wanted to meet across from a Honda shop. Ian Styman had not asked any questions because it involved Shannon and he agreed that Taber's meeting point was a lot closer to Taber's house. He did not ask Taber what Shannon had done because Taber hung up after telling Ian Styman to meet him. This was the nine second call made at 3.25 am. Ian Styman agreed that he had lied when he told the police in his interview that he did not recall that call. 171 Ian Styman was in the kitchen making toast at the time of Taber's call. He had been out in the garage fixing a computer and had the kitchen door closed so that the smell of the toast would not go through the house. He was cross-examined to the effect that he was making up this evidence, which he denied. He said that Sharyn Styman was mistaken in her evidence about him having left the house earlier that night. He had never spoken to her to correct her, after he received a copy of her statement, because she had been told not to speak to him. 172 Ian Styman drove his motor bike to meet Taber and Shannon. They were both sitting in Taber's mother's car. Taber told Ian Styman that Shannon had done over a drug dealer and was concerned about Shannon having used his mother's car. Ian Styman had not asked Shannon any questions about what he had taken from the drug dealer. Taber then opened the back door and said "look at all this shit". The light came on in the car and Ian Styman glanced at the back and basically saw gloves. At that stage he did not see any purses or jewellery or bags. Ian Styman gave Shannon "an earful" and said "its no use staying around here, lets go back to Peter's place". 173 Ian Styman drove to Taber's house on his motor bike. He was cross-examined about the implausibility of this given that Taber had wanted to get away from his house. Ian Styman also said in cross-examination that he drove to Taber's house because of his concern that police may be looking for the car and he wanted to get the car off the side of the road. However, he could not explain why they then travelled in that car to get something to eat. 174 Ian Styman arrived at Taber's house before Taber and Shannon. He said he turned off his motor bike at the roadway because he had consideration for the neighbours and for Sharyn Styman and the kids. Ian Styman explained the two second diverted call, shown at 4.31 am in the mobile phone records from his mobile by saying that he had rung Taber to find out where he was and had hung up when the voicemail came on. Taber's evidence had been that he was putting petrol in the car during this time. 175 Ian Styman was cross-examined about the mobile phone records of Shannon showing a call by Shannon to his house at 4.29 am. Ian Styman was not aware of such a call because at that time Shannon was with Taber on the way to Taber's house. 176 Ian Styman was on the street when Taber arrived, and he told Taber he wanted to get a drink and a hot dog. Ian Styman entered the back seat and pulled the gloves from the floor and the seat and he saw a purse, a string bag, two rings and pennies. Ian Styman told Shannon, "You haven't done a drug dealer over, what have you done?" He told Taber to pull over. Ian Styman got out of the car fuming. Shannon also got out. He was cross-examined about why he had not remained in the car to have this argument, but he said that the houses in the area were a distance away from where the car stopped. 177 Shannon told Ian Styman, "I've done an old bag's place over … tied her up and stole some things". Ian Styman told him that he had to get someone to go out there and untie her. In cross-examination, he was asked why he told Shannon to get someone else involved instead of telling Shannon to go and untie her himself. Ian Styman said he had been confused and had not thought about that. Ian Styman told Shannon to ring the police and Shannon said that the lady could untie herself. Ian Styman said he did not believe him and he denied in cross-examination that he was making this up. 178 Shannon refused to call the police, so Ian Styman made the 000 call while Shannon sat in the back of the car. Ian Styman was cross-examined about what he told the 000 operator, in particular that "a couple of blokes went in with guns". He had said that to make it more realistic, and he had said "a couple" because it sounded better. He could give no other explanation. 179 Ian Styman had not asked Shannon how the lady was tied up, and he was cross-examined about the fact that he had also not asked any questions about the lady's age, or whether she had a husband or children. He agreed that as far as he knew there could have been others who may have seen her to free her, but he never asked. Ian Styman had also seen duct tape in the back of the car. He was cross-examined about his reaction in seeing duct tape and cable ties in the car. He said that at first they were not noticeable and he never wondered if they were used on the lady. Ian Styman was cross-examined to the effect that his evidence was a lie and that it was implausible for him to suggest that he gave no significance to seeing these items when he had been so concerned, on his evidence, to make the 000 call. 180 After the call, they planned to get rid of everything from the car and they drove back to Taber's house. Ian Styman was cross-examined about why they bothered returning there. He said he was driving and "we were just driving in that direction" and he had no explanation for why they did not just go to the Nowra Bridge and get rid of everything first. He was cross-examined to the effect that he was tailoring his evidence to suit the fact that the 000 call was made from a traced phone booth and thus he was giving a false explanation for where they were and where they were headed. 181 When they reached Taber's house, Taber said. "The shit's got to be cleaned out". Everything was put into a string bag, which Ian Styman had also seen in the car. The bag was tied and they drove to the bridge. Ian Styman was cross-examined about the differing descriptions of the bag between Ian Styman and Taber and about the oddity of Shannon placing all these items in the back of the car in the first place. Shannon threw the bag over the bridge. 182 Ian Styman said that earlier that day he had made arrangements with Taber to go to Sydney and he asked Taber if they were still going. He said that Sharyn Styman was mixed up when she gave evidence that they had planned to trade in her car. Shannon asked to come along and Ian Styman had no objections. He was cross-examined about this, because on his version, the police may have been looking for Shannon. 183 Ian Styman was cross-examined about his purchase of the Suzuki on 7 January 2001. He paid in cash, with money given to him by Shannon, which was $4,000 in new notes and $1,000 in old $100 notes. At the time, Ian Styman was in a car yard and Shannon gave him the money and said he should buy something more decent. Ian Styman was cross-examined about what he had been planning to spend that day, before Shannon gave him the money. Ian Styman said he had $1,000. He was cross-examined about whether Sharyn Styman knew he had any money and he said she knew he had money but that she did not know the amount. He could not explain how Shannon knew that he did not have more money on him. In cross-examination, Ian Styman said that at the time when Shannon admitted to having robbed an old lady he had said that he had stolen money. Ian Styman nonetheless took the money from Shannon, though he disagreed with the evidence given by Taber, that Ian Styman had put the money in the back of his phone. Ian Styman's evidence was that he had put it in his pocket. He did not have his bum bag that day and had kept $1,000 he had brought with him in the back of his phone case. 184 Ian Styman also bought a TV unit. He drove the Suzuki back home and left his motor bike at Taber's house. Later that day, Taber drove to his house with the TV unit in his new ute. In cross-examination, he said that he had seen Shannon after 8 January 2001 and Shannon was worried that Ian Styman would dob him in. Ian Styman was scared to tell the police what he knew. He was cross-examined about his movements on 6 January 2001. He went to Taber's house in the afternoon with a PlayStation, something they had organised the day before. They set it up in the lounge room. Ian Styman could not recall if he had seen Leonie because he was focused on the game. Shannon arrived about 6 pm. He had been dropped off at the top of the street by a friend and walked to Taber's house which Ian Styman said was a couple of kilometres down the street. Ian Styman asked him what he was doing there and Shannon said that he had spotted his bike. Shannon borrowed Taber's mother's car. Ian Styman understood he was going home. Ian Styman's evidence was that he was expected home for dinner at that time too. He was cross-examined about why he had not left with Shannon. He said it was because he had his motor bike at Taber's house. He was cross-examined about why it was not easier for him to leave his motor bike there, drive Shannon home in the car and drive it to Taber's the next day, since they had arranged to drive that car to Sydney. 185 In the previous week, Ian Styman and his wife Sharyn had plans to go to Sydney. On 5 or 6 January, Ian Styman and Taber organised to go together. Ian Styman agreed that he had not told his wife about this until the evening of 6 January when he got home from Taber's house at around 9 pm. He denied that he then left with Shannon after telling her of the new arrangements. He said that she and the kids could not go to Sydney as well, because of the lack of room. He agreed that she had her own car and had wanted to trade it in. When asked why he excluded her from going to Sydney he said, "Because I changed my mind". 186 Ian Styman's evidence was that he had not left the house after arguing with Sharyn. He had headed into the garage with a computer. He remained at home until he received the phone call from Taber after 3 am. He agreed in cross-examination that he had asked his brother if it were possible for police to tamper with DNA, but he had not asked for any results to be altered. His evidence was that he had not been in tears. He had been concerned about the police planting DNA. He also gave evidence that he had worked in the key cutting and shoe repair business seven years earlier. 187 Ian Styman was cross-examined about security work he had done with Taber. He said that, between 1998 and 2000, he had worked with him twice, the second time at a caravan park in the new year of 1998/1999. He wore a uniform which included a short sleeved blue shirt. He could not be sure if he had ever seen the shirts produced by Sharyn Styman. He had no explanation for them being in his wardrobe. He said that Sharyn Styman was mixed up when she said he had left the house with Peake and some blue shirts. He said that Peake may have been lying because he was interested in Sharyn. 188 Ian Styman's evidence was that although he was concerned about the old lady, he had made no further enquiries to see if she had been found. He had not listened to the news between 7 and 19 January. He did not make any enquiries of Shannon or Taber in this regard. 189 In cross-examination, he said that on 19 January Shannon had rung him between 4 and 6 pm to ask where he was because he wanted to talk to him. He was questioned about the phone records in respect of Shannon's home phone. There were three calls from that phone to Ian Styman's mobile phone on 19 January but none between 4 and 6 pm. In re-examination, he said that Shannon had access to two telephones. 190 Shannon met up with Ian Styman and told him that police had blocked off the house that he had broken into at Spies Avenue. He said that he did not free the lady because there were police everywhere. Ian Styman could not recall what he told Shannon who left after twenty minutes. Ian Styman tried to ring Taber but could not contact him. He had no explanation for why he had not rung Taber while Shannon was there. He was cross-examined about why he had not gone to Spies Avenue or to Taber's house then, particularly as he had been so concerned to make the 000 call in the first place. He denied that what he was told by Shannon had not concerned him. Ian Styman went to see Taber the next day and Taber had told him that Leonie's aunt was found murdered. They realised that Shannon was responsible. Ian Styman denied visiting Taber as a result of what Shannon had told him. His evidence was that it had just been a visit. 191 Ian Styman's evidence was that he did not tell Shannon what Taber told him about the deceased being Leonie's aunt until 24 January 2001. He said that, although his role had been minimal and that he had phoned 000, he did not go to the police because he did not think the police would believe him. 192 Ian Styman was questioned in relation to his use of the term "14" when speaking to Taber in some tapped conversations. He denied that he wanted to alert Taber to the fact that the phones might be tapped. 193 Ian Styman was also cross-examined about a tapped conversation between Taber and himself where they spoke about the night of 6 January 2001. Ian Styman told Taber that his problem was that he had no alibi because he was not sure where he was. Taber agreed and said "I mean for all I know we were out that night". At the time of this conversation Ian Styman was not sure of where he had been although he was sure at the time that he gave his evidence. 194 Ian Styman called as a witness Brian Leslie McDonald, a fellow of the Australian College of Biomedical Sciences/Legal Medicine. McDonald said he had reviewed the evidence of Suzanne Briese in relation to the two blue shirts. He found himself at odds with her conclusion. The evidence indicated that one of the particular alleles corresponding to Ian Styman was not detectable in the DNA mixture. Therefore, his DNA could not be a component in the mixture and thus he was not a contributor to the shirt and would be excluded. He also disagreed with Ms Briese's assumption that there were only two contributors. Evidence of Shannon Styman 195 Shannon Styman gave evidence and was cross-examined. He lived at Erowel Bay with his de facto wife, Nadia Donn. Ian Styman was his uncle. Until 4 January 2001, he had not met Taber. On that date Shannon telephoned Ian and asked what he was doing. This was a call made at 11.30 am as shown in the phone records tendered. Ian Styman said he was going into town to drop off some PlayStations and Shannon asked if he could go with him. Ian Styman picked him up on his motor bike. Ian Styman asked Shannon if he was interested in making some money and Shannon said he was and asked Ian Styman what was involved. Ian Styman said "You'll find out soon enough" and they left and eventually drove to Taber's house. 196 Taber asked Shannon if he had a job and if he needed money. Shannon said he did not have a job and he did not have any money. Taber asked Shannon if he was interested in making any money and Shannon asked him what he had to do. Taber said his girlfriend's aunt lived in Greenwell Point and had enough money to buy a house. Taber said that he and Ian Styman had gone to the house one night to try to break into the house and were unsuccessful because the lady had woken up and that on another occasion, the two of them went there with Peake dressed as security guards. Taber said they would use a key to get in via the back door which was a skeleton key. Taber told Shannon that all he had to do was make sure that the lady stayed where she was and did not get hurt. They discussed going to the house that weekend. Ian Styman dropped Shannon home. 197 On 5 January 2001, Shannon rang Ian Styman twice and asked what he was doing. These calls appeared on the phone records at 11.55 am and 12.47 pm. Ian Styman said he had to go to Nowra for PlayStations and he picked Shannon up and they went to Neil Simmons' house. They then went to Taber's house. Taber said he was going to Greenwell Point the next day. There was discussion about cable ties and duct tape being used to tie up the lady. Shannon also saw a key which had been modified by Ian Styman. Ian Styman dropped Shannon home. 198 On 6 January 2001, Shannon and Ian Styman made contact with each other. Ian Styman picked Shannon up and they went to Taber's house where they sat with Taber and Leonie, who was in the pool. There was discussion in the presence of Leonie about going to Greenwell Point that evening, but there was no discussion about robbing an old lady. It was decided that if the key fitted the lock then they would go ahead with the robbery. Taber arranged to borrow his mother's car and Shannon and Ian Styman were to go back to their homes. Ian Styman dropped Shannon home and then returned to pick him up at 6.30 pm. 199 Shannon told Nadia that he would be home before a friend was due to arrive from Sydney and he left with Ian Styman. Ian Styman drove Shannon to Taber's place. They were all wearing dark clothes. Shannon noticed Taber take cable ties and duct tape from the top of his fridge. They left Taber's house around 8.30 pm or 9 pm. Leonie was in bed. They drove to Greenwell Point in Taber's mother's car. Ian Styman was driving. Taber sat in the front passenger seat. Shannon sat in the back. Ian Styman and Taber pointed out 23 Spies Avenue at around 10 pm. The car was driven down to the reserve where they stayed for a few hours. Taber decided to drive back past the house. On the way, they saw that a light was still on so they drove past and went towards the wharf where they remained for a while. Ian Styman and Taber were waiting for the wind to pick up so they would not make a noise when they tried the key. Finally Taber said that they should drive past the house again. The front light was now off. Shannon asked what would happen if the key worked and Taber said, "We'll go in and rob Mrs Alchin". Shannon asked Taber what would happen if she saw them. Taber said that he would just put a sheet over her head. 200 The three of them jumped the fence into the property and went into the back yard. Taber tried the back door with a key and it worked. They decided not to go into the house at that time and retraced their steps to the car and sat for a little while longer. Taber then said, "Let's do the job". Gloves were taken out of the boot for each of them and they went back into the back yard. Taber pulled a pair of ladies underwear off the clothes line and put it in his pocket. They walked into the house via the back door with Taber first, followed by Ian Styman and Shannon. They entered the lady's room and Taber grabbed her. At the time, Shannon stayed at the door. It was dark and he only saw that Taber was crouched down. Ian Styman grabbed the lady's hands and Taber gave Ian Styman a set of cable ties from his pocket and Ian Styman placed them on her hands. By now Shannon was at the foot of the bed and he grabbed her legs and asked Taber for a set of cable ties. Taber gave them to Ian Styman who passed them to Shannon who put them on her legs. Taber grabbed the underwear from his pocket and "placed them across Mrs Alchin, put the duct tape and the gag … to keep it in place, grabbed a pillowcase, put it over Mrs Alchin's head, and placed tape loosely around the head". At about this time, Shannon was holding her legs. Taber told her that she would not get hurt and told her to say where the money was. Ian Styman turned on a lamp and Shannon sat beside the lady and held her down by placing a hand on her shoulder. She was lying still. 201 Ian Styman and Taber searched the bedroom and found nothing and they then went to search the lounge room. Shannon called out to Ian Styman because one of the cable ties was too tight. Ian Styman came in and saw that the lady's hand was purple so he grabbed a knife from the kitchen and cut off one of the cable ties. He then placed duct tape around her hands. At about this time, her nightie had risen up and she was not wearing underwear so Ian Styman pulled the nightie down. Shannon denied that any of them sexually assaulted her. He did not see duct tape placed around her ankles and he did not see any duct tape removed from the deceased after it was placed on her. 202 Ian Styman eventually found money inside a brown paper bag in the bedroom. He called out to Taber and they decided to leave. Shannon asked if they would untie the lady and Ian Styman said they would ring the police. Taber left the room, tried the front door but he could not open it and came back in the room. The three of them grabbed two bed sheets and put them in between the mattress and tied them around the bed so that the lady could not hurt herself. When they left she was between the mattress and bed with a pillow case and the gag still on. 203 They left by the back door. Shannon rang Nadia at 4.32 am and left a message on the answering machine saying that he was going to Sydney which they had then decided to do. Calls shown on telephone records at 4.29 am and 5.34 am supported his evidence that he had rung Nadia and she had run him back. They had an argument about his going to Sydney. 204 The 000 call was made from the first phone booth they came to. Ian Styman made the call. Taber and Shannon stood outside the phone booth. They then went to Taber's house and counted the money which came to $23,300. The money was split with Shannon getting $2,300, Ian Styman $7,000 and Taber $14,000. The cash was a mixture of old and new notes. Leonie was present when the money was counted. They set out for Sydney at about 5.30 or 6 am. Shannon denied throwing a bag over the Nowra Bridge. The only thing disposed of was the key by Taber in the bush. 205 Shannon's evidence was that he spent the money on a TV and a PlayStation. Taber and Ian Styman made purchases at K-Mart and Ian Styman bought a TV unit which was placed in the back of Taber's new ute. After they returned from Sydney, Shannon went with Ian Styman in his new Suzuki and they drove to Ian Styman's place where the TV cabinet was dropped off. Shannon then went home and told Nadia that he had robbed a drug dealer. 206 Shannon agreed that he lied to police, when he was interviewed, by saying that he had not been involved with what happened to the deceased. He agreed that after his arrest in Queensland he told police that he had just gone in and taken the cash and that he had refused to nominate his co-offenders. He said he had not meant to harm the deceased and had checked to see that she was breathing before they left the house. He had expected the 000 call to be acted upon and did not think the lady would die. He had listened to the news and did not hear anything to suggest she had been found but he believed that perhaps the police had found her and were conducting a quiet investigation. He did not go to the authorities because he did not want to go to gaol. 207 Shannon had also told the police that it had been he who had fashioned the key to fit the lady's back door. His evidence was that he said that so that the police would get an understanding of how they entered the house. He had also told police that he had been the one who cut the cable ties off the deceased's hands. This was because he had not named his uncle Ian Styman to police. He agreed that he had also lied to police by saying that he had only $10,000 and had gone home to sleep afterwards. He had not wanted to mention anyone else who was involved. Shannon denied that Ian Styman had ever suggested to his brother that he tamper with DNA. 208 Nadia Suzanne Donn was called in the Crown case so that she would be available for cross-examination. She said that on 8 January 2001 Shannon bought a new motor bike and he frequently stayed out all night. There was an occasion when a friend was coming to stay at their house and Nadia had expected Shannon to be home but he went out and stayed out all night. The next morning she received a call from him saying that he was going to Sydney with Ian Styman, Taber and Leonie. He was dropped home in the early evening by Ian Styman. Summing Up 209 On 25 November 2002, after the completion of the defence cases, the Crown by leave called one more witness, Robert Goetz. Counsel then addressed the jury. On 29 November 2002, Barr J began his summing up to the jury. 210 In the course of directing the jury, Barr J said: "The offence of murder is committed when the accused does or is responsible for an act which causes death or when the accused makes an omission which causes death and at the time of the act or omission he fully contemplated it would probably result in death. So before you can find any accused guilty of the murder of Mrs Alchin, you must be satisfied that his act or an act for which he is responsible or his omission caused the death of Mrs Alchin and that the accused fully realised at the time that the probable consequence would be death but was nevertheless prepared to do the act or permit another to do it or was prepared to make the omission and take the chance that death would follow." (p30-31) 211 After referring to medical evidence that Mrs Alchin survived between nine and eleven days without water and that the likely time of her death was somewhere between 16 and 18 January 2001 and the dominant cause of death was dehydration associated with restraint, with smothering happening right at the end when Mrs Alchin was so weak that her face came into contact with the pillowcase obstructing her nose, Barr J said: "According to this evidence, the things which set in train the process of death were the binding, the gagging and the abandonment of Mrs Alchin. The abandonment began when her attacker or attackers left her bound and gagged. The abandonment continued until Mrs Alchin died, so it is open to you to find that the act causing death, constituted by the binding, gagging and the abandonment, was complete as soon as her attacker or attackers left her. It is also open to you to find that the omission after the abandonment to remove Mrs Alchin from the danger she was in was an omission which caused her death. Was the act causing death that of any accused or did he make himself responsible for it? Apart from the evidence of Shannon Styman, there is no evidence that any particular accused did any particular thing during the course of the attack on Mrs Alchin. Of course, the Crown relies on Shannon Styman's evidence. The Crown case against all accused is that all three of them took part in the attack against Mrs Alchin and then abandoned her and thereby made themselves responsible for the consequences, and that each is guilty of murder. But insofar as the Crown relies on any positive act, for instance, binding or gagging, the Crown cannot say except by relying on Shannon Styman's evidence who precisely did what. The Crown says that all are responsible for what happened because they all took part in the attack. Each thereby made himself responsible for what they jointly did. The Crown says this was an enterprise in which they all joined." (p33-34) 212 With due respect, the first quoted paragraph is confusing. What should have been made clear to the jury was that by the acts of binding, gagging and abandoning Mrs Alchin, each accused concerned made himself responsible to take all reasonable and practicable steps to release Mrs Alchin. But the making by the accused of the 000 call meant that it was not open to the jury to be satisfied beyond reasonable doubt that when the accused abandoned Mrs Alchin, the accused fully realised that that act would probably lead to her death. The Crown relied on the accuseds' omission after the 000 call to take any steps to release Mrs Alchin at a time when the Crown contended the accused fully realised that that omission would probably result in Mrs Alchin's death. 213 His Honour pointed out that a joint criminal enterprise might be inferred from all the circumstances, including anything said, even though an agreement or arrangement had not been reached at any particular time before the crime was committed. He expanded this and gave examples. He pointed out that it was not any part of the Crown case that the accused went there with any intention of killing Mrs Alchin. There was no evidence from which the jury could conclude that after a time not long after the 000 call at 4.54am on 7 January 2001 any accused encouraged or assisted anyone. Their joint enterprise, if that was what the jury found it was, was complete after they divided up the proceeds of the robbery. That they spent time together afterwards spending the proceeds did not change that conclusion. (p39) 214 Barr J continued: "As I have said, each accused who joined in the attack on Mrs Alchin himself abandoned her and continued until the time of her death to be responsible for his own act of abandoning her. The Crown case is that each of the accused did or was responsible for that act and each made an omission, either or both of which caused the death of Mrs Alchin. In so far as there was an omission, the Crown says it was an omission to fulfil a duty cast by the law on any person who was responsible for the attack on Mrs Alchin and deliberately abandoned her, leaving her helpless, to remove the danger she was in. That is what the Crown says. What does the law say? The law says that if a person without lawful excuse puts another into a position of danger the first person comes under a duty to remove the danger. If the person fails to remove the danger and harm results, that person will be liable to be held criminally responsible for causing that harm." (p39-40) 215 In the second quoted paragraph the language suggested that the duty owed was an absolute one, which it was not. The crime of murder is made out where an omission by the accused, causing death, is accompanied by reckless indifference to human life. Where the accused has put a person in danger of death, there is a responsibility (to use the term preferred by Lord Diplock in R v Miller at 179) to do everything reasonably practicable to remove the person from danger. A failure to discharge that responsibility is an "omission". If the omission results in death and is accompanied by the necessary state of mind, the crime of murder is made out. There remains, of course, the need to explain to the jury the meaning of "reckless indifference to human life". 216 As we have stated, omission accompanied by the necessary state of mind does not constitute the crime of murder unless the omission caused the death. That was not included in the passage quoted above from the summing up. However, the Crown submitted correctly that Barr J made it clear to the jury, elsewhere in the summing up, that the omission to act, ie to take all reasonable and practicable steps to remove the danger, was not by itself sufficient to constitute murder. There had to be an accompanying relevant mental state. 217 The summing up continued: "I direct you that if any of the accused made himself responsible in any of the ways in which I have directed you for the attack on Mrs Alchin and abandoned her in her helpless state, he was under a legal duty to release her from her bondage or to effect her release by someone else so as to remove the danger she was in. I further direct you that if you find that any of the accused by his conduct put himself under that duty to remove Mrs Alchin from danger, his duty was not discharged by the making of the telephone call to emergency services. Because Mrs Alchin continued to be in danger after that call was made, the duty to remove her from it continued, and it continued until she died, some nine to eleven days later. In his closing address Mr Wendler asked whether the triple 0 people carried any responsibility and whether we must just ignore the fact that there was no response to the telephone call. He continued, 'that is going to be quite a controversial question I suggest in your deliberations because as sure as I stand here, had the call gone through, this murder case would not have materialised.' Mr Wendler's submission was inappropriate. I hope that it is clear from what I have said that you will not be concerned in your deliberations with any question whether the State emergency authorities bear any responsibility for their lack of response to the triple 0 call. State Emergency Services are not on trial here. Neither is any individual person concerned with the triple 0 call other than the accused themselves. In considering this first element in the crime of murder you are concerned only with whether the accused did or was responsible for the act causing death, or made the omission causing death. There is another view of the facts which relies on the evidence of Taber and, to some extent, Ian Styman. Mr Taber said to you that Shannon Styman came to him at 3 am on the 7th January 2001 and told him that he had already carried out a robbery, which must have been that of Mrs Alchin. If that is what happened, Shannon Styman is alone responsible for the death. In that case, of course, no question arises as to his responsibility for anyone else's act. He did everything himself. If he attacked Mrs Alchin and abandoned her he put himself under the same duty to remove her from danger. That duty was not removed by the telephone call but continued until Mrs Alchin died. Because you have to consider separately each charge against each accused I shall do so as well. I shall begin with the accused Taber." (p42-43) Unfortunately, again the duty of each accused was stated in absolute terms. Further, his Honour's comments about Mr Wendler's submission preempted the approach which should have been taken to the question of whether the accuseds' omission after the 000 call to take all reasonable and practicable steps to release Mrs Alchin caused her death. That remained a matter for the jury to determine. 218 His Honour then outlined the Crown case against Taber. A little further on the trial Judge said: "The direct evidence of Taber's whereabouts and activities at the time that the deceased was attacked and abandoned comes from three witnesses, namely, Shannon Styman, Taber, and Ian Styman. The evidence Shannon Styman gave before you is admissible in the cases of Taber and Ian Styman as well as in his own case. Generally, evidence of what he said to the police informally and by formal interview is admissible only in his own case. However, he was asked in cross-examination about parts of what he said to the police in his three interviews and the things said on those occasions have thereby become evidence in the trial generally." (p45-46) 219 His Honour then summarised Shannon Styman's evidence, quoting in part from the transcript. His Honour dealt with the responses made to this evidence on behalf of Taber. Reference was made to the evidence of Leonie, parts of which were quoted from the transcript (p91 and following). Again by summary and quotation from the transcript his Honour dealt with the evidence of Peake (p98 and following) and Sharyn Styman (p104). Next his Honour dealt with the evidence of David Taber, the accused's father (p118). His Honour referred to the things found at Taber's house noting that, in the end, the Crown abandoned the finding of masks as part of its case (p123). Shannon Styman said that no masks were used. 220 No fingerprints were found at the scene of the crime, which suggested gloves were worn. During the police search of Taber's home, rubber gloves were found. Cable ties, identical to those used on Mrs Alchin were also discovered. Explanations were given, one being that Taber was a builder and builders used cable ties and another was that the gloves were his mother's. This led to the duct tape found in the utility (p125). The defence attitude was that this was a police plant (p127). Expert evidence was given by Ms Sutton of the testing of this tape and it was noted that Taber had made no submissions to the jury that the jury should doubt the opinion given by Ms Sutton (p127). His Honour said something generally about DNA results (p128). In dealing with the allegation of a police plant his Honour referred to the video of the search which was relied on (p144). On this aspect, the trial Judge referred to the evidence of Meegan Herne (p147). 221 Barr J referred to the reliance by the Crown in the case of Taber on the use of old $100 notes (p153). Ultimately, both Taber and Ian Styman accepted they had these notes in their possession and that they were the proceeds of the robbery of Mrs Alchin but gave an explanation of that. The plan which disappeared and was copied was referred to. The Judge pointed out that the Crown could not, and did not, rely on evidence of its disappearance as evidence of guilt (p156). On the question of motive in Taber's case, the trial Judge referred to his poor financial position at the time (p158). The trial Judge referred to the evidence of Ms Turner (p160). In relation to part of a conversation at which Ms Turner was present when Leonie said in the presence of Taber "We can always kill her" referring to Mrs Alchin after Mrs Alchin had refused a loan, the trial Judge noted that it was not the Crown case that any accused intended to kill Mrs Alchin (p165). 222 On this part of the case his Honour concluded: "On the evidence generally, the Crown submits to you that you would conclude that Mr Taber knew that the deceased had substantial amounts of money, and there is one conversation in one of the tapes that suggests a belief that she had enough money to buy a house. I am not suggesting there is evidence that she had that kind of money but that was what was believed, and that he had reason to believe that she kept it in her house. It is evidence, the Crown says, that Taber considered trying to get his hands on that money by way of loan or, if that wasn't going to work, by other means, and is evidence that Taber knew that Mrs Alchin lived alone. Mr Wendler submits to you that it is unreasonable to conclude, first of all, that these conversations took place, or that if they did, Mr Taber ever took part in them. The whole of the evidence, Miss Turner's and the other evidence of proximity and family, does not establish that Mr Taber knew about the deceased's money, or had any belief about it, or had any designs on it, and that you should accept Mr Peter Taber's evidence about that, and his sworn evidence was that he did not know any such things. The last topic in Mr Taber's case on this first question is that Peter Taber and Ian Styman were out of bed at relevant times when you would expect them to be in bed asleep, namely, at 3.25 in the morning and 4.31 am of the morning when the deceased died and not long before the triple 0 call was made." (p171-172) 223 The next topic the trial Judge turned to was what he described as "moving to Queensland" (p174). All the accused left Nowra and went to Queensland between the time when the police questioned them and their eventual arrest. His Honour warned about the danger of misusing this evidence. The jury was not to use it as evidence of guilt. His Honour directed the jury not to draw any inference adverse to any accused from his travelling to Queensland. 224 In due course, Barr J handed the jury a list under the headings "Evidence not generally available in the trial" (other than in the case of the accused concerned), "Evidence available only in the case of Taber", "Evidence available only in the case of Ian Styman", "Evidence available only in the case of Shannon Styman", "Evidence available only in the cases of Taber and Ian Styman" and "Evidence available only in the cases of Ian Styman and Shannon Styman". The appellants did not challenge the accuracy of this list except to argue that the evidence of the search at 211 Old Southern Road was admissible only against Taber, a submission the trial Judge rejected. 225 Next came the summary of the case against Ian Styman. His Honour said: "The Crown case is that Ian Styman was present taking part in the attack on Mrs Alchin and, like the others, abandoned her, leaving her helpless. The Crown relies on the evidence of Shannon Styman to that effect and Ian Styman adopted the evidence of Mr Taber. He told you he knew nothing about any attack on anybody until he received an explanation from Shannon Styman after having been summoned to the meeting near the Honda shop by the telephone call from Peter Taber. He denied having played any part in the attack on Mrs Alchin and he said that he telephoned the emergency service in order to effect the release of the person that Shannon Styman told him he had tied up. That was because Shannon Styman refused to do so." (p175-176) 226 His Honour referred back to Shannon Styman's evidence and Ian Styman's financial position and possession of old $100 notes shortly after the robbery. Reference was made to Ian Styman's experience in cutting keys (p177) and Shannon Styman's evidence of the filing down of the key, the testing on the back door of 211 Old Southern Road and its eventual use on the back door of Mrs Alchin's house at Greenwell Point. In particular, reference was made to Ian Styman's visit with Shannon Styman to John Styman's house. His Honour said: "The Crown submits that Ian Styman would not have gone there and said what he said unless he knew that he had played his part in the attack on Mrs Alchin. There is no other explanation, the Crown says." (p178) 227 The trial Judge gave an appropriate warning to the jury about this evidence and the elimination of explanations alternative to the one that Ian Styman feared the truth. The trial Judge said: "Was it simply a fear of being wrongly accused? If you think that that explains any possibility that Mr Styman did what he did, you may not take this evidence into account in assessing the Crown case." (p181) 228 In relation to a submission by counsel that the video of the search at 211 Old Southern Road was not evidence in Ian Styman's case his Honour said: "That was wrong; it is evidence in Ian Styman's case" (p183). 229 Next his Honour came to the case of Shannon Styman (p183) starting with his evidence that he was one of three attackers. His Honour said: "You understand that in the cases of Taber and Ian Styman there is an alternative explanation put forward that things may have happened in the way that Taber and Ian Styman say, namely, that Shannon Styman, without their participation, attacked the deceased and tied her up and all that happened before 3 am on 7 January when he arrived at Taber's house. Now, all that Taber and Ian Styman need to do is to raise in your mind the reasonable possibility that that is the way things happened. If they do, then, of course, you cannot be satisfied beyond reasonable doubt that they were there taking part in the attack. That would be obvious to you I'm sure. However you must understand that as between the Crown and Shannon Styman this issue is closed off. They conduct their case the way they wish and the Crown asserts that Shannon Styman was part of a joint attack. So does Shannon Styman. You should understand that there is no room for a finding in Shannon Styman's case that he attacked Mrs Alchin alone." (p184) (We interpolate here that this last paragraph was, with respect, incorrect. The evidence of Taber and Ian Styman about whether they were involved in the attack on Mrs Alchin and what Shannon Styman said about it was evidence in the trial as a whole and material which was available to the jury as much in the case against Shannon Styman as it was in the cases of the appellants. Of course, on either account, Shannon Styman was inculpated. This direction was not the subject of any submission either at the trial or here and it is not necessary to consider its potential significance.) His Honour then summarised Shannon Styman's evidence. 230 His Honour distributed to the jury, folders for their use containing written directions. These exhaustively and accurately described, with explanatory notes, the circumstances in which each of murder, manslaughter by criminal negligence, manslaughter by unlawful and dangerous act, breaking, entering and committing a serious indictable offence in circumstances of aggravation, entering a dwelling house with intent to commit a serious indictable offence in circumstances of aggravation and sexual intercourse without consent in circumstances of aggravation is committed. 231 Mr Wendler, who appeared for Taber, referred to the use of the expression in the context of the murder charge "the accused realises" in the written direction and submitted that "fully realised" was the right expression which the trial Judge accepted and amended the written direction accordingly. No further objection to the form of this direction was taken. In Royall v The Queen (1990) 172 CLR 378 at 395 Mason CJ spoke of foresight of the probability of death when considering "reckless indifference to human life" and "the need for knowledge, awareness, foresight or realisation (the expression preferred by Barr J) of the probability of death"; see also Brennan J at 399. At 405 Brennan J said: "It was sufficient that the jury was satisfied beyond reasonable doubt that, at that time when the accused committed an act causing death, he entertained one or other of the mental states referred to in s18(1)(a)." 232 Barr J continued the summing up: "If you are satisfied beyond reasonable doubt that any accused did the act causing death or made himself responsible for it or that he made the omission causing death, you must also be satisfied beyond reasonable doubt that the accused fully realised when doing the act or making the omission that Mrs Alchin would probably die. That is what the second of these questions says in the written directions. It is not necessary that he had that realisation or contemplation at every stage of the act or omission causing death. It is sufficient if he had it at some stage in the period beginning with the act causing death and continuing throughout the period of the omission, beginning when Mrs Alchin was abandoned and ending when she died." With due respect, it was not sufficient that the accused had the relevant state of mind at any stage beginning with the abandonment of Mrs Alchin. The relevant state of mind on the case made by the Crown based on omission was the state of mind after the 000 call. 233 Barr J continued: "Let me deal first with the time when the attacker or attackers left the house leaving Mrs Alchin lying helpless. In the way the case has been conducted there are two possibilities as to who attacked Mrs Alchin and when. The one contended for by the Crown and counsel for Shannon Styman relies in part on the evidence of Shannon Styman. According to that evidence, the three accused entered Mrs Alchin's house at about 4 am and left by 4.30 am having decided to telephone the emergency service in order to have Mrs Alchin rescued. The second possibility, contended for by counsel for Taber and Ian Styman, is that, according to what Taber says Shannon told him, Shannon Styman had done the robbery and tied up an old lady before 3 am, the time he arrived at Taber's house. Nothing in that version involves Shannon Styman having been in the company of anyone else. The evidence establishes that Ian Styman made a telephone call to the emergency triple 0 number at 4.54 am on 7 January 2001. It is only about ten kilometres from Greenwell Point to Nowra and the public telephone from which the emergency call was made was on the Greenwell Point side of Nowra, in east Nowra. Shannon Styman says that the journey took about 20 minutes. If things happened as he says, it could not have taken long to drive from Spies Avenue, Greenwell Point to that telephone box and it might, independently of his evidence, be reasonable to suppose that the telephone call was made within a short time after the abandonment of Mrs Alchin. You will not be considering this element of the crime of murder, of course, unless you are satisfied beyond reasonable doubt that the accused whose case you are considering did or was responsible for the act causing death. If you have come to that conclusion in the case of Taber or Ian Styman you must have rejected the version put forward by that accused, the principal effect of which was that he was not present and only found out that somebody had been attacked after Shannon Styman told first Mr Taber and then Ian Styman. It follows that for the purposes of this second element you must also reject their version of the way in which the telephone call came to be made by Ian Styman. If you are satisfied that Shannon Styman was telling the truth and that all three accused left Spies Avenue intending to telephone the police, it follows that none of the accused would be contemplating that Mrs Alchin would probably die, because they would all be expecting her to be rescued by the police within a short time. The way in which Mrs Alchin was restrained enabled her to breath through the nose. The pillowslip over her head was only loosely secured. Anybody knowing those things would expect her to be rescued alive and without serious physical harm. I am going to give you a direction of law now. I direct you that if the telephone call was made on behalf of all the accused to give effect to an arrangement they made before they left the house to have the authorities rescue Mrs Alchin, you cannot find that any accused then realised that she would probably die. Let me repeat that direction in different words. If any accused left Mrs Alchin's house expecting that a telephone call would be made with the intention of having the police rescue Mrs Alchin, that accused did not then fully realise that she would probably die. That would not be the end of your consideration of the matter, however, because you would also have to consider the state of mind of that accused between the time of the telephone call and the time when Mrs Alchin died. Mrs Alchin was not rescued and continued to live for a further nine to eleven days. [The evidence of Dr Bradhurst was that Mrs Alchin died sometime between 1pm on 5 January 2001 and midday on 19 January 2001 'but more likely sometime between 16 and 18 January 2001']. If you are satisfied that the accused omitted to rescue Mrs Alchin or have someone else rescue her and so caused her death, you must consider whether during the period of omission he thought that she would probably die but decided nevertheless to do nothing else and leave her to her fate. When I say he thought that she would probably die, I mean fully realised that she would probably die This raises the question of what the accused understood or believed was happening about Mrs Alchin between the 7th January and the 16th to the 18th January 2001. Let me just explain those dates. The 16th to the 18th January is the time at which Dr Bradhurst thinks that the deceased most probably died. For these purposes you would have to regard the 16th January, not the 17th and not the 18th, as the date of death, because you have to treat this matter conservatively. You have to be satisfied beyond reasonable doubt about each element of each count including this element that I am discussing now. So you are now considering the period between the 7th January and the 16th January. Let me assume that you will decide that the accused contemplated at the time of the telephone call that Mrs Alchin would be found by the police and released without serious harm. Did he continue to think so as time went by and there was no announcement of the rescue of Mrs Alchin? Did his state of mind change or did it remain the same? Did he come around to a realisation that she would probably die? In order to prove that during the period between the triple 0 call and the death of the deceased, the accused whose case you are considering realised that the deceased would probably die, you would have first to be satisfied that the accused realised that she had not been rescued. Let me repeat that. Before you can find this second element proved, you must be satisfied that the accused realised, not merely suspected, that the triple 0 call had not produced a response and that she had not been otherwise rescued, for example by a friend or a neighbour or family member or a tradesman, and that, therefore, Mrs Alchin was still where she had been left when the accused abandoned her. You must be satisfied beyond reasonable doubt that the accused realised that there had been no rescue. If you are so satisfied you may go on and decide whether you are satisfied beyond reasonable doubt that the accused must therefore have realised that Mrs Alchin would probably die. The Crown submits in Mr Taber's case that he continued to live in the district. He continued to live with the niece of Mrs Alchin. He must have been waiting to hear news of her rescue. He must have realised when he heard nothing that the triple 0 call had not been successful. He knew that Mrs Alchin lived alone. He knew that family members were not likely to visit her because of tensions in the family, and that therefore he must have realised that she had not been rescued. It surely would have made news if she had been and there was no news. It is not reasonable to suppose that he would not have been concerned as he continued to look and listen for news of the rescue after such a serious offence, the robbery. It would have been in the forefront of his mind. Mr Taber said that he believed that the triple 0 call would be successful. He listened to the news on the way to Sydney and again that night. He was concerned at those times. After Sunday night, however, he came round to thinking that Shannon Styman was not telling the truth. He never thought about the matter again, he told you. He did not want to be involved in it in the first place. Of course, if you are considering this element in Taber's case, you will be satisfied beyond reasonable doubt that he was one of the attackers, so you will not accept his evidence about disbelieving that an old woman had been tied up. The evidence of Taber did not otherwise deal with the question whether, after the triple 0 call, he realised that Mrs Alchin had not been rescued and came round to thinking therefore that she would probably die. I will not read you that evidence. I think I have summarised it. Now Mr Wendler did not address you on this element, and that is understandable because his client's case is that it just does not arise. Mr Taber was not part of the attack. Of course you will only be dealing with this if you are satisfied beyond reasonable doubt that Taber did the act causing death, so it is understandable why Mr Wendler has not addressed you on that and it cannot be a criticism of his address to you. I remind you though, of what could be said on behalf of Mr Taber, that you must be satisfied that he realised, and that means not merely suspected, that not only had the rescue plan not worked, but that Mrs Alchin had not been rescued in any other way, for example by a member of the family and so on, or accidentally by somebody coming to the house. If you are satisfied in Taber's case beyond reasonable doubt that he came to realise, fully realise that the deceased had not been rescued, then you can go on to consider whether you are satisfied beyond reasonable doubt that he realised that she would probably die. I can say much the same in the case of Ian Styman. It is not substantially different from Mr Taber's in this respect. Of course his case is that he was not there, and you are dealing with this element in his case having found beyond reasonable doubt that he was there. Ian Styman was asked no questions about his thoughts about the deceased after the triple 0 call. He was cross-examined. He said that he made no inquiries whether they had found the old lady and didn't ask Shannon Styman or Taber about it." (p186-193) 234 Shannon Styman's case was that he always believed that Mrs Alchin would be rescued, having been found by the police or by somebody else. He asked the appellants whether they were going to untie Mrs Alchin before they left her house. Taber and Ian Styman said they would not do that but would ring the police. He said he had never heard anything that suggested that Mrs Alchin had been found. Asked if he believed that that meant she had not been found his answer was "yes and no" (p194). An explanation he gave was that he had on his mind that the police had already found Mrs Alchin and were doing a private investigation. He did not know that she rarely saw people or that her next door neighbour had not spoken to her for many years or that the man around the corner had not spoken to her at all. He did not know about relations within the Ravell family, and in particular that her sisters had not spoken to her for years and did not visit (p197). 235 His Honour said finally that if the jury was satisfied beyond reasonable doubt that any accused did the act causing death or was responsible for it or made the omission causing death but not that it was done fully realising that Mrs Alchin would probably die, the jury must find him not guilty of murder but then go on to consider whether that accused committed manslaughter. 236 His Honour then directed the jury on manslaughter; first, manslaughter by criminal negligence and then manslaughter by unlawful and dangerous act (p207). The trial Judge directed the jury that the Crown might secure a verdict of manslaughter by proving that the accused, or a person for whose act he is responsible, did the act causing death and the act was unlawful and it was dangerous (p208). 237 Next Barr J came to the robbery charges against Taber and Ian Styman noting that Shannon Styman had pleaded guilty to this charge at the beginning of the trial (p213). It is not necessary to refer to that part of the summing up which dealt with the sexual offences. 238 At 3.32 pm on 5 December 2002 the jury retired to consider its verdict. 239 On 6 December 2002, the trial Judge dealt with a question from the jury asking him to re-read or reiterate the portions of his summing up in relation to the second question of the murder count ie "at the time of the act or omission the accused fully realises that the deceased will probably die but goes on and takes the risk" paying particular regard to the various arguments about the 000 call and the subsequent days until the deceased died. His Honour said: "If any accused left Mrs Alchin's house intending that the triple 0 call would be made so as to have the police rescue Mrs Alchin, he cannot then have fully realised that she would probably die. It follows that to find this element of murder proved at any time up to the time of the triple 0 call, you would have to be satisfied beyond reasonable doubt that the accused did not intend to make the triple 0 call or have another one make it on his behalf. If there is a reasonable possibility that the accused intended the call to be made with that purpose, he cannot at that stage have fully realised that the deceased would probably die. Indeed, common sense suggests that his state of mind would be the very opposite; he thought she would probably live. That would not dispose of the matter, however, because you would have to consider the accused's case after the triple 0 call but before the death of Mrs Alchin. You would have to consider whether he came during that period to a full realisation that Mrs Alchin would probably die. I remind you that the telephone call was made at 4.54 in the morning on 7 January and that for this purpose you must regard Mrs Alchin's death as having occurred on 16 January. So it is that period of nine days that you are considering. No time later than the 16th is available for your consideration in this respect. In order to succeed, the Crown must satisfy you beyond reasonable doubt that the accused whose case you are considering came to a full realisation during that period of time that Mrs Alchin had not been found and removed from danger. Suspicion would not be enough. Only if you are satisfied about that may you go on and ask yourselves whether you are satisfied that the accused whose case you are considering fully realised that Mrs Alchin would probably die. Before you answer that question, you must consider whether having come to a realisation that the deceased had not been found, he thought that she might still by some means or other be found alive. If you are satisfied beyond reasonable doubt that the accused fully realised that Mrs Alchin would probably die, your duty will be to find the accused guilty of murder. If you have a reasonable doubt about that, you must find him not guilty of murder." (p244-246) Again, it must be pointed out that Dr Bradhurst's evidence that Mrs Alchin died "more likely some time between 16 and 18 January 2001" was not a sufficient basis for a conclusion beyond reasonable doubt that she was alive until at least 16 January. 240 His Honour then dealt individually with Taber's case, then Ian Styman's case and Shannon Styman's case. At the conclusion, and after some discussion, his Honour directed the jury (at p256): "You have to be satisfied beyond reasonable doubt that it was the accused whose case you are considering who came to that full realisation in fact, that first Mrs Alchin had not been rescued and then that she would probably die." 241 No further re-direction was sought. On 10 December 2002 the jury asked the Judge to summarise the law relating to the sexual assault charge which his Honour did. In response to a jury note a further direction on the sexual assault case was given on 10 December 2002. 242 On Wednesday, 11 December 2002, the jury returned verdicts against Taber of guilty of murder and of aggravated robbery but not guilty of aggravated sexual intercourse without consent, against 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 intercourse. Sentences 243 Barr J 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 commencing from the day of his arrest on 26 March 2002, and for the murder of Mrs Alchin to imprisonment for life to commence on 26 March 2002. The same sentences were imposed on Ian Styman. In both cases his Honour declined to fix a non-parole period. 244 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 commencing on 26 March 2002 and for the unlawful killing of Mrs Alchin to imprisonment for fourteen years commencing on 26 March 2002 with a non-parole period of nine years expiring on 25 March 2011. His Honour said that he had reduced the non-parole period to take account of the partial accumulation of the sentences and to promote rehabilitation by extending the period of parole. 245 In light of the conclusion of the Court about the appeal against the appellants' convictions for murder and the orders that follow, it is unnecessary for us to consider the appellants' appeals against sentence. However, it is relevant to note the following observations made by his Honour: "81 The fact of the theft of Mrs Alchin's money can be considered only in sentencing for the aggravated robbery and the fact of her death only in sentencing for murder or manslaughter. Otherwise, however, the two offences comprise for the most part a number of common features which contribute to an assessment of their seriousness. They may broadly be described as the preparations, the attack on Mrs Alchin and her restraint. Since it is inappropriate to punish an offender more than once for criminal conduct, even though it may constitute or contribute towards more than one offence, there must be a substantial degree of concurrency in the sentences imposed. It would be wrong to think, in view of the sentences I intend to impose for murder, that this is only of academic interest. A proper sentence must be imposed for each offence. The partial accumulation of the resulting sentences takes account of each offender's overall criminality." Appeals and applications for leave to appeal 246 The grounds of appeal relied upon by Ian Styman were: 1. His Honour erred in law in not directing verdicts of acquittal on all counts at the close of the Crown case. 2. His Honour erred in law in misdirecting and/or failing to direct the jury adequately or properly in respect of:- (a) murder (b) manslaughter (c) causation 3. His Honour erred in law in directing and/or failing to direct the jury adequately or properly in respect of joint enterprise as follows:- (a) in that there was no evidence of pre-concert (b) in that the acts of declarations of others could not be taken into consideration in respect of any agreement or understanding 4. (a) His Honour erred in law in failing to find a prima facie case in respect of the appellant to determine the admissibility of the acts of others in the appellant's case (on all counts). (b) The acts and declarations of others were not admissible in respect of the appellant on all counts. 5. The determination of his Honour on 6 November 2002 that there was a legal duty of 'an attacker to see to the rescue of a person he had deliberately put into a position of danger' (para 26-27 of addendum of judgment) being before the appellant's case and the subsequent reversal of that decision in generally similar terms after the appellant's case resulted in a miscarriage of justice. 6. His Honour erred in law in directing and/or failing to direct the jury in respect of murder and manslaughter:- (a) as to the facts essential to the elements of the crimes and in respect of murder the facts relevant to the mental element. (b) the setting out of the case of the appellant as a separate entity. (c) in not setting out the precise evidence admissible in the appellant's case and relying on a general direction as to the law applicable to such admissibility. (d) in that the evidence of the search of the house of the co-accused was inadmissible in the appellant's case. 7. The verdict of the jury on all counts should be set aside on the ground that it is unreasonable or cannot be supported on the evidence giving rise to a miscarriage of justice. 8. The sentences were excessive in each case:- (a) in respect of robbery it did not accord with the guidelines and was outside the range (b) in respect of the murder that it was against the authorities in relation to the 'worst possible' case and was outside the range considering the circumstances (c) by reason of parity with Shannon Styman. 247 Taber appealed on the following grounds: 1. That the trial judge erred in law by holding that having regard to the evidence at the conclusion of the Crown case the appellant could lawfully be convicted on the offence of murder. 2. That the trial judge erred in law by instructing the jury on the offence of murder. 3. That the verdicts of the jury are unreasonable and cannot be supported having regard to the evidence. 4. That the verdicts of the jury are unreasonable in relation to the offence of murder in that the jury ought to have had a reasonable doubt in the case of the appellant if they had a reasonable doubt in the case of Shannon Styman. 5. That the trial judge erred in law by failing to fully direct the jury on the issue of causation. 248 By leave during the hearing of the appeal, Taber amended ground 1 to take the same form as ground 1 of Ian Styman's grounds of appeal. Taber also appealed against the sentence as manifestly excessive and claimed a justifiable sense of grievance by reason of the disparity of his sentence compared with that of the accused Shannon Styman, in the sense that the sentencing Judge found the applicant's criminality was in the worst case category for murder but Shannon Styman's criminality was not in the worst case category for manslaughter. 249 We deal with the appellants' grounds of appeal under these headings: 1. Causation – the attribution of causal responsibility. 2. Refusal to direct verdicts of acquittal at the close of Crown case (judgments of 1 November, 6 November and 11 December 2002). 3. Directions on murder and manslaughter. 4. Directions on joint enterprise. 5. Admissibility of evidence. 6. Whether verdicts unreasonable. 7. The sentences. Causation – the attribution of causal responsibility 250 It was a matter for the jury whether, if either of the appellants was found after the 000 call to have omitted to take all reasonable and practicable steps to release Mrs Alchin, his omission was relevantly causally connected with Mrs Alchin's death. 251 In Royall Mason CJ at 387, speaking of causation as an issue of fact to be left to the jury to decide, agreed with the statement made by Burt CJ in Campbell v The Queen [1981] WAR 286; (1980) 2 A Crim R 157, that it is "enough if juries [are] told that the question of cause for them to decide is not a philosophical or a scientific question, but a question to be determined by them applying their common sense to the facts as they find them, they appreciating that the purpose of the inquiry is to attribute legal responsibility in a criminal matter." 252 At times, the argument by the appellants on causation, seemed to suggest that the Crown had to prove that the acts or omissions of the appellants were the sole cause of Mrs Alchin's death. That is not so. As Brennan J said in Royall at 398: "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: Regina v Pagett (1983) 76 CrAppR 279 at 288. It need not be the sole, direct or immediate cause of the death." 253 In the present case, 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 not to leave that question to the jury. 254 That having been said, there was no reasonable prospect that the jury might fail to find that the appellants' omission caused Mrs Alchin's death on the facts of this case. It follows that the error did not lead to a miscarriage of justice and that no appeal lies on this account. It remained for the Crown to satisfy the jury beyond reasonable doubt that at the time of the omission the accused fully realised that their failure to release Mrs Alchin would probably result in her death. Refusal to direct verdicts of acquittal. 255 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. As we have said, there was evidence of that element in the Crown case. Indeed, as we have said, we are inclined to the view that there was no reasonable prospect that the jury, properly directed, might have found otherwise. Barr J's decision to refuse the applications was correct. Directions on murder and manslaughter 256 On 22 November 2002 Mr Wendler, on behalf of Taber, objected to murder being left to the jury. Relevantly, he submitted that the jury could not have regard to the events after the 000 call as an omission causing death. In written submissions it was put on behalf of Taber, that the Crown case was in reality manslaughter by criminal negligence or manslaughter by unlawful and dangerous act. It was submitted that Barr J, in effect, instructed the jury that the state of mind of any accused could be considered in two parts, first, between the abandonment of the deceased and the 000 call and secondly, from the 000 call to the time when Mrs Alchin was discovered on 19 January 2001. It was said that the overall complexion of the summing up suggested that all the accused were under a legal duty from the time of the making of the 000 call until 19 January 2001 and that the failure to discharge this legal duty made all the accused liable to be found guilty of murder. It was submitted that these instructions were all referable to manslaughter by criminal negligence, not murder. Nowhere in the summing up was there an adequate distinction between these two forms of homicide. 257 So put, this submission has no substance. We have already quoted extensively from his Honour's summing up. It is unnecessary to repeat what has already been set out. On the morning of the third day of the summing up, the trial Judge said in a passage partly already quoted: "And of course, if you have a reasonable doubt about that you cannot be satisfied beyond reasonable doubt that he realised that she had not been found and so you cannot be satisfied beyond reasonable doubt that he realised that she would probably die. That is how the argument goes. I have dealt with murder in full. If, in respect of any accused you are satisfied beyond reasonable doubt about both these things, your duty will be to find him guilty of murder. If in respect of any accused you are not satisfied beyond reasonable doubt about the first of these questions, namely, whether he did the act causing death or was responsible for it, or whether he made the omissions, your duty will be to find a verdict of not guilty of murder and not guilty of manslaughter. If you are satisfied beyond reasonable doubt that the accused whose case you are considering did the act causing death or was responsible for it or made the omission causing death, but not that it was done fully realising that Mrs Alchin would probably die, you must find him not guilty of murder, but then go on to consider whether that accused committed manslaughter, and that is the matter I am going to take you to at 2 o'clock." 258 By that time his Honour had distributed to the jury written questions for the jury. No objection was taken to these. They were designed to bring to the attention of the jury, questions which had to be answered in the affirmative if the jury were to find the accused guilty of murder, or manslaughter by criminal negligence, or manslaughter by unlawful and dangerous act or breaking, entering and committing a serious indictable offence in circumstances of aggravation or entering a dwelling house with intent to commit a serious indictable offence in circumstances of aggravation. There could be no doubt that in the summing up, both orally and in the written directions, which we have summarised, and in the written questions the trial Judge adequately distinguished between the forms of homicide which were relevant. 259 It was submitted that once the language of "duty" is employed in homicide, one is immediately in the realm of manslaughter by criminal negligence: Taktak v R (1988) 34 A Crim R 334. It was said that the reason why objection was made to the trial Judge leaving murder for the consideration of the jury was that the jury would not be able to effectively differentiate between the "duty" in murder by omission and the "duty" in manslaughter by criminal negligence and this confusion was capable of creating a miscarriage of justice. Again, reference to the summing up, the written direction and the written questions for the jury denied the possibility of such confusion. 260 What this passage made clear was that before any accused could be found guilty of the murder of Mrs Alchin the jury must be satisfied that the accused fully realised at the time that the probable consequence would be death. The written direction took the form: "Murder is committed when - - the act of the accused or for which he is responsible or the omission of the accused causes the death of the deceased, and - at the time of the act or omission the accused fully realises that the deceased will probably die but goes on and takes the risk. Notes 1. The accused does not have to desire the death of the deceased. 2. An omission may consist of a failure to fulfil a duty imposed by the law. 3. If a person deliberately puts another in danger the law imposes a duty on that person to remove the danger." 261 A separate written direction for manslaughter by criminal negligence was: "Manslaughter is committed when - - the accused has a duty of care towards the deceased, - he is negligent because his act or omission amounted to a breach of his duty of care, - his negligent act or omission falls so far short of the standard of care that a reasonable person would exercise in the circumstances and involves such a high risk of death or really serious injury that it merits criminal punishment, and - his negligent act or omission causes the death of the deceased." The eight notes that follow are omitted. 262 The written direction for manslaughter by unlawful and dangerous act was: "Manslaughter is committed where - - the accused does an act which causes death, - the act is unlawful, and - the act is dangerous. Notes 1. It is unlawful to apply force or restraint to a person without permission. 2. An act may include or consist of an omission. 3. An act is dangerous if a reasonable person in the position of the accused would realise that it exposed somebody to an appreciable risk of serious injury. 4. The accused does not have to realise that the act is dangerous." 263 The Crown submitted that it was difficult to envisage why the use of the term "duty" would have created confusion. It was made clear to the jury that the omission to act, ie to remove the danger, was not by itself sufficient to constitute murder. There had to be an accompanying relevant mental state. The necessary mental state was only established if the jury was satisfied beyond reasonable doubt that the appellant, in omitting to act, realised that the victim would probably die. His Honour's direction to the jury on manslaughter by criminal negligence accorded with the written direction. It was submitted that the murder verdict indicated that the jury was satisfied that the appellant not only did the act or omission causing death but did so with a mental state by which he adverted to the probability that the victim would die as a consequence of his conduct. The latter was not relevant to manslaughter by criminal negligence and the distinction between the two was made clear to the jury. It was said that the same observation could be made about the directions about manslaughter by unlawful and dangerous act. The distinctions between the relevant physical acts constituting the offence and the different mental elements were clearly stated. In our opinion, these grounds of appeal fail. Directions on joint enterprise 264 In summing up Barr J said: "The Crown case is that the three accused went to Mrs Alchin's house having made an arrangement to subdue, bind and gag her so that they could find the money they believed was in the house, steal it and get away without her impeding them or raising the alarm. It is not the Crown case that they went there with any intention of killing her. If you find that there was such a joint criminal enterprise it is open to you to find that each person who was present and acting to carry out the objects of the arrangement became responsible for everything that any of the attackers did in carrying out the arrangement. There are limits to the extent to which you can apply the law of joint criminal enterprise. You can use it to hold any member of the joint criminal enterprise responsible for any act done by any member of it in furtherance of what they had agreed to do, for example disabling, binding and gagging Mrs Alchin. But that is really as far as the application of the doctrine of joint criminal enterprise can be carried in this case. If any accused, having rendered Mrs Alchin helpless or having made himself responsible for her condition, abandoned her by leaving the house, his act of abandonment was his own act. So you might not find it helpful when considering the act of abandonment to think of holding any accused responsible for anyone else's act of abandonment. You have evidence that Ian Styman telephoned triple 0 at 4.54am and of what he said. There seems to be an issue whether that telephone call was part of a joint enterprise between Shannon Styman, Peter Taber and Ian Styman. There are two bodies of evidence that purport to explain how and why Ian Styman made the call. Peter Taber and Ian Styman have told you in their evidence that Ian Styman insisted on making it after Shannon Styman told them that the had tied up an old lady and then refused to do anything about getting her released. The Crown invites you to reject that explanation. So does Shannon Styman, who says that before the three accused left the house he asked whether they were going to untie Mrs Alchin and the reply was to the effect that they would not untie her but would telephone the police. The Crown made a number of submissions about that evidence. The Crown questioned whether Ian Styman, and anybody on whose behalf he was telephoning, really believed that such a call would effect the rescue of the deceased. He categorised their cases as 'we meant somebody to rescue her' and asked you whether you really thought that that was so. He asked you whether you believed Shannon Styman in his claim to have asked whether they were going to untie Mrs Alchin. So there seems to be a dispute whether the triple 0 call was made pursuant to an arrangement between the three attackers as Shannon Styman says it was. There is no evidence from which you could conclude that after a time not long after the triple 0 call at 4.54am on 7 January 2001 any accused encouraged or assisted anyone. Their joint enterprise, if that is what you find it was, was complete after they divided up the proceeds of the robbery, and the fact that two or all of them spent time together afterwards spending the proceeds does not change that. It will therefore be inappropriate for you to think in terms of the joint criminal enterprise after that time." 265 No coherent argument was put which suggested any error in this part of the summing up. Admissibility of evidence 266 As has already been pointed out, the trial Judge gave to the jury written documents carefully explaining which evidence was admissible and which evidence was not against each of the accused. In only one respect was his Honour's ruling challenged and that related to the admissibility of the search of Taber's house against Ian Styman. This evidence was directed to the part that Taber had played in the arrangement between the three accused to go to Mrs Alchin's house, subdue, bind and gag her, steal her money and abandon her without raising the alarm. In that context, clearly in so far as the evidence was admissible against Taber, it was admissible against the other two accused involved in that joint criminal enterprise. Whether verdicts unreasonable 267 It was submitted on behalf of Taber that the jury ought to have entertained a reasonable doubt in his case concerning murder by omission if the jury had doubt in relation to the same offence in the case of Shannon Styman. It was unreasonable to acquit Shannon Styman of murder but convict the appellants of murder. On the Crown case, all were involved in the robbery and all participated in the 000 call. All accused remained in touch with each other after the robbery. The Crown case concerning the state of mind in relation to each accused after the 000 call was, as the trial Judge told the jury, "much the same". If the jury had a doubt about Shannon Styman's state of mind, that is that he fully realised that Mrs Alchin had not been rescued and that she would probably die, the same doubt ought to have been entertained by the jury in relation to the appellants. The explanation might be that the jury decided to be merciful to Shannon Styman because they thought he was telling the truth in relation to the robbery of Mrs Alchin. 268 The Crown pointed out that the manslaughter verdict reflected a finding that either Shannon Styman failed to exercise the requisite duty of care or that he committed an unlawful and dangerous act that resulted in death. It was not part of the verdict that he foresaw the probability of death. It was submitted that the jury assessed Shannon Styman's evidence in a different context to the appellants. With the exception of the sexual assault he admitted his involvement. He said that Taber and Ian Styman recruited him to participate in their existing plan. His significantly lesser share in the proceeds of the robbery in part reflected his role. It was also consistent with Peake's evidence that excluded Shannon Styman from any involvement in the preliminary conduct about which he gave evidence. Shannon Styman was about 5 years younger than Taber and about 15 years younger than his uncle, Ian Styman. 269 Shannon Styman gave evidence that immediately before leaving Mrs Alchin's home he asked whether they were going to untie her. He said that Taber and Ian Styman said "No, we're going to ring the police". He gave evidence that he always believed the victim would be released and expected the subsequent phone call to be acted upon. One possibly significant point of distinction between his state of mind and that of the appellants was the latter's access to information from the Ravell family, although the evidence permitted little more than surmise about the actual extent of the knowledge of the appellants of the nature of the relationship between the appellant and her family. With regard to his state of mind after the call, Shannon Styman said in effect that he was uncertain what the absence of any news that the victim had been found actually meant. He considered that one possibility was that she had been found and that the police were conducting a "quiet investigation". If that evidence were either accepted or created a reasonable doubt in the jury's mind it would not have been open to find that he realised that the victim would probably die. If the jury approached the matter in that way it could not have returned a verdict of guilty of murder. 270 In short, there was evidence which suggested that the appellants would have known from their family connections that Mrs Alchin had not been found and knew that if she was not found she would die. On the other hand, the effect of the evidence was that Mrs Alchin's family were estranged and it is by no means certain that, if the police were keeping her rescue secret, either that her family would have known or that they would have been informed. At the same time, Shannon Styman did not apparently have any knowledge of Mrs Alchin's family circumstances and advanced evidence which, if accepted, would at the least raise a reasonable doubt about his having the relevant mental state. 271 Section 6(1) of the Criminal Appeal Act 1912 provides that this Court on any appeal against conviction "shall allow the appeal if it is of the opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported, having regard to the evidence, or that the judgment of the court of trial should be set aside on the ground of the wrong decision of any question of law, or that on any other ground whatever there was a miscarriage of justice." In Jones v The Queen (1997) 191 CLR 439 at 450-1, 452, Gaudron, McHugh and Gummow JJ said:' "In M v The Queen (1994) 181 CLR 487, Mason CJ, Deane, Dawson and Toohey said (at 493) that the test for an unsafe or unsatisfactory verdict was whether the court thought that, upon the whole of the evidence, it was 'open to the jury' to be satisfied beyond reasonable doubt that the accused was guilty. The majority emphasised, however, that it was not the function of the court to answer that question merely by examining the transcript of evidence and the exhibits. Their Honours said that (at 493): 'in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations.' The majority judges explained (at 494) the application of the test as follows: 'In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence.' Gaudron J agreed (at 508) with the majority formulation of the test, as did Brennan J (at 501), although His Honour said (at 501-502) that the question as to whether it was 'open to the jury' to be satisfied of guilt beyond reasonable doubt was to be resolved by asking whether the jury was 'upon the whole of the evidence … bound to have a reasonable doubt' [Citing Dawson J in Chidiac v The Queen (1991) 171 CLR 432 at 451] or whether 'the jury, acting reasonably, must have entertained a reasonable doubt as to the guilt of the accused'. McHugh J said (at 525) that the correct test for determining whether a verdict should be set aside on the ground that it was unreasonable was 'whether a reasonable jury must have had a reasonable doubt about the accused's guilt'. McHugh J did not adopt the 'open to the jury' test because his Honour thought that such a test came 'perilously close to applying the test for determining whether there was a sufficiency of evidence to convict the accused' and would constitute 'an unwarranted intrusion into the jury's right to determine the facts in a criminal trial' (at 525). However, the test formulated by the majority in M must now be accepted as the appropriate test for determining whether a verdict is unsafe or unsatisfactory." 272 Accordingly, this Court is 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. It was put that the jury ought to have entertained such a doubt about the guilt of Taber on both of the counts on which he was convicted for reasons related to the evidence of Peake, Donyelle Turner, Leonie Ravell and Shannon Styman and also the evidence of the search at Old Southern Road on 24 January 2001. 273 Counsel submitted that the evidence of Peake was "wholly unreliable". In particular, no jury acting reasonably could have embraced his account of the tying up episode alleged to have occurred in his presence in early December 2000. One feature of Peake's evidence was that the episode occurred in Nowra in early December 2000. Of this time he was "positive". It was, however, shown that Taber was not in the Nowra area in early December on the days alleged. Several civilian witnesses called by the Crown confirmed that Taber was working away from the Nowra area erecting sheds for most of December 2000. Peake said that it occurred around 6 pm in a "lounge room or bedroom" at Taber's mother's place. Taber's father, called by the Crown, testified that he was living at the family home between 1 and 23 December 2000. His routine as a dairy farmhand saw him arrive home between 5.30 and 6 pm and remain there until early the next morning. He said there was never any occasion when he saw Peake at his home between those dates. 274 Ian Styman's wife, Sharyn, a witness for the Crown, testified that Peake had told her that the tying up episode took place in the garage of the Styman family home. Peake, recalled by the Crown, denied ever telling her that there was a tying up episode in the garage of the Styman family home. 275 It was further submitted that the circumstances of the actual tying up episode as Peake described them were unreliable. In chief, Peake said that Taber and Ian Styman entered Taber's family home in East Nowra leaving Peake to finish a cigarette at the front of the house. Peake then entered the house and heard one of the men call him to a room at the rear of the premises. He said he went into the room and the men were a "bit shocked". It was submitted that this evidence did not make sense because there was no reason for the men to be a "bit shocked" if they had invited Peake into the room. Peake said the men were facing each other and one was "tied up in cable ties" but he was "not really too sure" who that was. One of the men had his hands out in front with clenched fists facing towards the ground for "no more than 10 to 20 seconds". He did not see the cable ties removed from the wrists. In cross-examination, he agreed he had given an account of the tying up episode to a police officer during a "run around" interview on 17 August 2002. On video, contrary to his evidence in chief, Peake told the police officer that he saw Ian Styman tie Taber's hands together. Peake also told police on video that the tying up episode occurred at a later time in the room rather than being in progress at the time he entered the room. He also said that Ian Styman had some cable ties in his top pocket. He changed this evidence to suggest that Ian Styman "possibly" had cable ties in his pocket. He told the jury that he had been to Greenwell Point "a couple of times", whereas on the video he appeared to suggest that he was familiar with the Greenwell Point area. 276 In evidence, Peake said that he travelled to the Greenwell Point area with the two men whom he left at a particular location and was instructed to await a phone call in order to pick them up. There was no evidence from the large body of mobile phone call records referable to Taber and Ian Styman which suggested that either Taber or Ian Styman made contact with Peake's mobile phone in early December 2000. It was said, finally, that the video of the "run around" was capable of suggesting that in parts police "coached" Peake in relation to identifying Spies Avenue. 277 The Crown also relied on the evidence of Donyelle Turner, which is summarised above at para 93 and is unnecessary to repeat. The appellants point, in particular, to the effect of the cross-examination of her, submitting that her evidence could not, in the end, be relied on as inculpating Taber. In cross-examination, Turner was unable to give details of the date she moved to Old Southern Road though able to recall conversations almost two years previously. In chief, she used the full name of the deceased "Joy Alchin" when referring to conversations between Ravell and the appellant. In cross-examination, she agreed that Ravell never used the expression "Joy Alchin". Turner agreed that nowhere in her police statement was the expression "Joy Alchin" or "Auntie Joy" used. Initially, Turner did not agree with the proposition put to her in cross-examination that she was not sober during any day of her tenancy at Old Southern Road. When reminded of evidence she had given at a preliminary hearing of her level of Indian hemp consumption, she accepted that she smoked hemp every day. In short, having regard to the level of Turner's sobriety, there was a real issue concerning the reliability and accuracy of some of the conversations recalled by her. We have already mentioned her significant concession that it was possible that the conversations regarding borrowing money from Mrs Alchin were actually between Ravell and herself, with the appellant Taber in the background but not taking part. 278 The Crown called Leonie Ravell but (in obedience to directions given by Barr J when his Honour gave leave to call her) never asked her about conversations in which the borrowing of money from Mrs Alchin, as described by Turner, was discussed. Ravell suggested that the appellant left the premises at Old Southern Road about 7 to 8 pm on 6 January 2001. In cross-examination, it was said that it became apparent that she had just assumed that the appellant had left the premises because she had heard a car leave the driveway of the house. She said she "didn't see who left in this car". She confirmed that both Ian and Shannon Styman were present in the early evening of 6 January 2001 and that Ian Styman had arrived at about 4 to 4.30 that afternoon. She went to bed and did not see the appellant until the next morning around 6 to 6.30 am. Once she had been awoken by the appellant she showered, got dressed and accompanied the appellant, and Ian and Shannon Styman to Sydney on 7 January 2001. She said she fell asleep almost immediately upon entering the car to travel to Sydney. It was submitted that this evidence was capable of confirming the appellant's version of events, namely that he was not involved in the break, enter and robbery of Mrs Alchin. 279 Shannon Styman, in his evidence, told the jury that when the party arrived back at Old Southern Road the appellant and Ian Styman, in the presence of Ravell, counted the stolen money ($23,300) in the lounge room. Ravell received $7,000. Ravell was present when the appellant allegedly told Ian Styman that he was going out to Greenwell Point that night. These events were never suggested to Ravell in cross-examination by counsel for Shannon Styman. 280 It was put in the written submissions that the video was capable of suggesting, having regard to the manner of the search, that police were aware of the existence of the "planted" tape. The tape was allegedly discovered in the rear of a car not in Taber's possession at the time of the alleged crime. The Crown case was that Mrs Alchin was attacked on the morning of 7 January and not discovered until 19 January 2001. This would mean that Taber for, it was alleged, some strange reason, decided to retain and transfer to a new vehicle incriminating duct tape used in the binding and gagging of Mrs Alchin from 7 until 24 January 2001. The physical condition of the tape as shown on the video appeared to be inconsistent with its being exposed to the elements for 17 days. Meegan Herne gave evidence, apparently revealing for the first time, that she had seen a police officer holding a ball of tape near the rear of the utility. She had to be recalled by the Crown, as did other police involved in the search. The brown paper exhibit bag containing the tape was discovered during cross-examination to be missing. It was later found during the course of the trial at the Nowra police station. Shannon Styman told the jury that the tape used to bind Mrs Alchin was cut by Taber using his teeth. This evidence moved the Crown to re-submit all of the tape seized by the police for further DNA analysis. The DNA of the appellant was not located on any of the tape. 281 It was submitted that a scrutiny of the evidence of Shannon Styman, as a whole, demonstrated that it was so unreliable that no jury acting reasonably could act on it. It was said that at the conclusion of his examination in chief he had given no less than six different accounts about his involvement in the events surrounding the robbery of Mrs Alchin. In his record of interview, he told the police he had absolutely no involvement in any crimes committed at Spies Avenue. Later in an interview, he confirmed in aggressive and confident terms that he was in no way involved in the robbery of Mrs Alchin. He then told police "I went in, got the cash", suggesting that he was solely involved in the robbery. Subsequently, he gave the police an account of the events concerning the robbery but refused to reveal the identity of other persons involved. At trial, his final version was different to that given by him in examination in chief and different again to that put by his counsel to Taber in cross-examination. 282 He agreed that he only co-operated with the police "when I found out I was going to be charged with murder, sexual assault of Mrs Alchin, I decided to tell them what my part was". At trial his "part" was different to the final version he had given police in the last record of interview. He agreed that had he not been charged he would not have co-operated with the authorities. Once he realised that he was going to be charged, he told police "what about Peter and Ian?" When cross-examined as to why he was interested in what was going to happen to them, he answered "I've got no answer for that one". He gave evidence that once he realised that he would be charged he only wanted to reveal to police his personal involvement in the robbery of Mrs Alchin. This account to police turned out to be partly false. In cross-examination, he was asked "what was the point of embarking on another series of lies, deceitful answers in relation to your involvement?" He answered "I don't know". 283 The cross-examination further revealed that his involvement in the robbery of Mrs Alchin as described in the last record of interview was more serious than in his examination in chief. During his cross-examination, there were many occasions when it was pointed out to him that his counsel's version of events, put to the appellant in cross-examination concerning the circumstances of the robbery, was inconsistent or absent from his evidence in chief. According to him, Taber and Ian Styman used their teeth to cut the duct tape when binding Mrs Alchin. No DNA of the appellant was discovered on any duct tape recovered by police. It was said that some evidence he gave could only be described as absurd. The most obvious example was his evidence that Mrs Alchin was gagged by the appellant following which the appellant, according to him, said "tell us where the money is and we won't hurt you". 284 Shannon Styman told the witness Nadia Donn (his de facto marriage partner) that he had "robbed a drug dealer". Taber also said in his evidence that Shannon Styman, following his arrival at Taber's home in the early hours of 7 January 2001, had initially told him that he had "robbed a drug dealer". It was submitted that his evidence was remarkably devoid of detail concerning the actual circumstances of the binding and gagging of Mrs Alchin. 285 There was a body of mobile phone record evidence referable to him. These records were capable of rebutting his evidence that he was in the company of the appellant on the afternoon of 4 January 2001 when he alleged there were conversations concerning the planning of the robbery. Further, the records were capable of suggesting that on the morning of 7 January 2001 he was in the company of Taber, at the time Taber testified he was and in the circumstances Taber described. 286 Taber testified that he observed items of jewellery which he understood Shannon Styman had taken during the robbery. Nadia Donn confirmed that Shannon Styman had given her some rings which had turned out to be too small for her. The defence alleged that these rings formerly belonged to Mrs Alchin, a woman of small stature. 287 It was submitted that Taber and Ian Styman were extensively cross-examined by counsel for Shannon Styman and by the Crown and were consistent in their accounts of what occurred in the early hours of 7 January 2001. They were not contradicted or embarrassed during cross-examination. 288 As Brennan J pointed out in M v The Queen at 502: "The question whether a jury, acting reasonably, must have entertained a reasonable doubt about guilt remits to the appellate court an inquiry into all the evidentiary aspects of the case. But the jury have advantages in the finding of facts which are denied to an appellate court. As Dawson J pointed out in Whitehorn [(1983) 152 CLR 657 at 687]: 'In particular, a court of appeal does not usually have the opportunity to assess the worth of a witness's evidence by seeing and hearing that evidence given. Moreover, the jury performs its function within the atmosphere of the particular trial which it may not be possible to reproduce upon appeal. These considerations point to important differences between the functions of a jury and those of a court of appeal. A jury is able, and is required, to evaluate the evidence in a manner in which a court of appeal cannot.' " 289 Although Taber's criticism of Peake centred on his evidence of witnessing the tying up practice, it also related to the association between the two appellants and their reconnoitre before the offences were committed. The evidence was consistent with an attempted entry into Mrs Alchin's home before January. The finding of the plastic "card" at her home prior to the robbery and Shannon Styman's evidence about being told of earlier attempts, confirmed Peake's account. He was subjected to a long cross-examination. The competing views of his evidence and his credibility were exhaustively dealt with in front of the jury. While a significant part of the cross-examination was directed to showing that the incident about which he gave evidence could not have occurred in early December, the Crown position, ultimately, was that while he may have been in error regarding the precise time he was correct on his assertion that the incident he witnessed did occur. In particular, on the occasion when after lunch he went with Ian Styman to Taber's home and then to Ian Styman's home at Sanctuary Point, he said he was asked to purchase some milk by Ian Styman's wife, Sharyn. 290 Mrs Styman gave evidence that on an occasion "around about January" 2000, later corrected to January 2001, she saw her husband with a blue security officer shirt and recalled a conversation in which her husband said he had a security job in Wollongong. This was the same explanation that Ian Styman gave Peake. Peake's evidence that the occasion involved him purchasing some milk for Mrs Styman, was confirmed by Mrs Styman in her evidence. Peake said that about half an hour after arriving they drove to Taber's mother's home. Ian Styman travelled with Taber in a small white four door vehicle. At the trial there was no issue that Taber's mother owned a vehicle of that description and that during December it was regularly used by Taber. He said that up until the time he began using his mother's car, a Hyundai Excel, he was driving a Ford Falcon panel van. Its registration expired and he used the Excel from about 21 December. He did not have the use of that vehicle before that date. It was open to the jury to conclude that Taber was driving a small white vehicle in December but from a later date than was recalled by Peake. It was apparent from the video run around that the white vehicle was identified by Peake as being the appellant's mother's vehicle. 291 Peake was uncertain about what was said to him before he entered the house after smoking his cigarette outside. It may be that nothing was said at all, in which case it would not have been surprising about his appearance leaving the appellants "a bit shocked". This was all a matter for the jury, as it was the jury which had the advantage of observing the manner in which Peake gave his evidence. 292 Peake was uncertain whether the room in which he saw them was a bedroom or a lounge room. He saw Taber and Styman facing one and other and saw that one of them, he could not remember which, was tied up in cable ties. 293 Of significance was Peake's evidence that on this occasion he thought Taber's parents were in Queensland. That understanding was, on the evidence, correct. This placed the incident later in December or early January rather than his recollection that it occurred in early December. Taber gave evidence that his mother had gone to Queensland and had been joined by his father and brother shortly after Taber returned from Canberra. He recalled that he returned from Canberra the week before Christmas and that he had possession of the Hyundai Excel from about 21 December. His brother, William, said that he had "pretty much" exclusive use of the Excel until 23 or 24 December. Taber's evidence was that he had the use of the vehicle during the period in which his mother, father and brother were in Queensland. That fact was consistent with Peake's account of no one else being at Taber's mother's home when he was there. It might also explain why Taber and Ian Styman had gone there to get changed and experiment with the cable ties. 294 Peake also said that Taber and Ian Styman changed into black pants and blue business shirts. Ian Styman told Peake they were going to do a security job in Wollongong. Peake was given a blue shirt and tie to wear and told that he was to accompany them. They drove off in what was described as Taber's parent's car towards Greenwell Point. Peake gave detailed evidence about the route taken and what they did. He said he dropped Ian Styman and Taber off and drove away to await their telephone call. He received this call and picked them up about 15 to 20 minutes later and they all returned to Taber's mother's home. He confirmed he purchased the milk that Mrs Styman had asked him to purchase. In cross-examination, Peake confirmed that it was his recollection that the lunch with Ian Styman occurred in early December. 295 He was cross-examined at length about the videoed run around and his identification of various places to the police. It was suggested that he had concocted his account and was using the opportunity to "big note" himself. It was suggested that Peake may have seen Taber wearing a shirt and black pants on another occasion. He disagreed. The possibility of police coaching was raised in cross-examination as were the names of police officers involved. The Crown submitted that a fair reading of the transcript indicated that the witness was identifying a route in which he did not always know the names of streets. The references by Memmolo were to identify the precise identity of the streets so that the video made some sense to whoever ultimately viewed it. It was open to the jury to accept Peake's evidence. 296 It was put to Mrs Styman that her account was false and that she had been "put up to it" by Peake. There was no evidence before the jury of what might have motivated Peake or her to concoct such a story. 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 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. ********* Last Modified: 12/24/2008 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. 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