Reported Decision : 157 A Crim R 174 New South Wales Supreme Court CITATION : R v Taber & Styman [2005] NSWSC 936 HEARING DATE(S) : 14 September 2005 JUDGMENT DATE : 16 September 2005 Common Law Division JURISDICTION : Criminal List JUDGMENT OF : Studdert J DECISION : Application refused. CATCHWORDS : Plea in bar application - whether available - further question as to whether proceedings an abuse of process. LEGISLATION CITED : Crimes Act, s 112 Pearce v TheQueen (1998) 194 CLR 610 R v Beedie (1997) 2 Cr.App.R 167 R v Carroll (2002) 213 CLR 615 CASES CITED : R v De Simoni (1981) 147 CLR 383 R v O'Loughlin; ex parte Ralphs (1971) 1 SASR 219 R v Styman & Taber [2004] NSWCCA 245 Regina v Peter Taber PARTIES : Regina v Ian Craig Styman FILE NUMBER(S) : SC 2002/120; 2002/118 A. Robertson (Crown) COUNSEL : G. Wendler (Taber) G. Kumarasinhe (Styman) S. Kavanagh (Crown) SOLICITORS : Van Houten Solicitors (Accused) LOWER COURT JURISDICTION : IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION CRIMINAL LIST STUDDERT J Friday 16 September 2005 2002/120 REGINA v PETER TABER 2002/118 REGINA v IAN CRAIG STYMAN JUDGMENT 1 HIS HONOUR: The accused, Ian Craig Styman and Peter David Taber, pleaded not guilty upon the presentation of an indictment charging them with the manslaughter of Joy Golbie Alchin between 5 January and 19 January 2001 at Greenwell Point. Each accused also raised a plea in bar by reason of having earlier been convicted of aggravated break and enter and commission of a serious indictable offence. 2 Before this Court, Mr Wendler, on behalf of the accused Peter Taber, submitted that there was available to his client a plea in bar and, in the alternative, sought an order that further proceedings upon the indictment be stayed permanently by reason of the current proceedings constituting an abuse of process. 3 Mr Kumarasinhe, who appears for the accused Ian Styman, supported the applications made by Mr Wendler. 4 It is necessary to refer to the background to these applications. 5 On 19 January 2001 the deceased, Joy Golbie Alchin, was found dead in her house at 23 Spies Avenue, Greenwell Point. The deceased was found lying face down on a mattress on the floor of her bedroom, with her wrists and ankles tied together. An undergarment had been used to form a wad against her mouth and a pillowcase had been placed over her head. There was tape wound around her mouth, lower jaw and neck. The time of death was not precisely determined, but the immediate cause of death was considered to be smothering and dehydration associated with restraint. In this summary, I have drawn upon the decision of the Court of Criminal Appeal in R v Styman and Taber [2004] NSWCCA 245. To the judgment of that court I shall return shortly. 6 The accused stood trial before Barr J and jury jointly indicted on the following charges: (i) that between 5th and 19th January 2001 they murdered the deceased; (ii) that on or about 6th January 2001 in circumstances of aggravation, they broke and entered the dwelling house of the deceased and there committed a serious indictable offence, namely robbery in company; (iii) in the alternative to (ii), that they entered the dwelling house of the deceased with intent to commit a serious indictable offence, namely to steal her property and at the time of committing such offence knew there was a person in the dwelling house; (iv) that they committed the further offence of aggravated sexual intercourse. 7 After a lengthy trial, the jury found the accused guilty of murder and guilty of breaking and entering and committing a serious indictable offence in circumstances of aggravation. The accused were acquitted of the charge of aggravated sexual assault. 8 Barr J sentenced each accused to imprisonment for life for the murder of the deceased and imposed a sentence on each accused of imprisonment for twenty years for the offence of breaking and entering and committing a serious indictable offence in circumstances of aggravation. 9 Each accused appealed and on 10 September 2004 the Court of Criminal Appeal upheld the appeal, quashing the murder conviction. The court ordered that there be a new trial of the accused upon the charge of manslaughter. Further, the court granted leave to appeal against the sentences imposed for aggravated breaking and entering and committing a serious indictable offence, setting aside the sentences imposed by Barr J. At a later hearing before Sheller JA on 29 November 2004, his Honour remitted the aggravated breaking and entering matters to a judge of the court for re-sentencing. 10 It is to be observed that the matters argued before me and the subject of the present judgment were not raised in the Court of Criminal Appeal, which ordered that there be a new trial of each accused on the charge of manslaughter. 11 Mr Wendler submitted that the evidence in the previous trial requisite to procure the conviction of the accused on the aggravated break and enter and commit serious indictable offence comprised the following: (i) that the accused broke and entered the dwelling house; (ii) that they committed robbery there; (iii) that the accused acted in company and deprived the deceased of her liberty. 12 Mr Wendler referred to the summing up of Barr J in the course of which (SU 213 and following) his Honour gave the jury instruction as to the elements the Crown was required to prove to establish that offence: "The precise terms – I am sorry, the next count in the indictment for the accused Taber and Ian Styman is what I will call for the moment the robbery charge. This is the charge to which Shannon Styman pleaded guilty at the beginning of the trial so you will not be asked to deliver a verdict on that charge in his case. The precise terms of the charge against the accused Taber are that on or about 6 January 2001 at Greenwell Point in circumstances of aggravation he broke and entered the dwelling house of Mrs Alchin and committed there a serious offence, namely that while in the company of Ian Styman and Shannon Styman he robbed Mrs Alchin of her money and at the same time deprived her of her liberty. The charge against Ian Styman is the same except that he is said to have been in the company of Ian [sic] Styman and Peter Taber. Before you can find either the accused Taber or the accused Ian Styman guilty of this offence you must be satisfied beyond reasonable doubt about three matters, namely, that he broke and entered the dwelling house of Mrs Alchin, that he committed therein a serious indictable offence, namely, that he robbed Mrs Alchin of her money and that he did those things in circumstances of aggravation, and you will see those three things set out in the directions on page 3 under the heading of this offence." 13 Mr Wendler submitted that it is to be anticipated that the Crown will seek to prove the commission of the offence of manslaughter either on the basis of the commission of an unlawful and dangerous act or, alternatively, upon the basis of manslaughter by criminal negligence. To prove manslaughter on the former basis, the Crown would set out to prove the commission of an unlawful and dangerous act which directly caused the death of the deceased. He submitted the unlawful act was the binding and restraining of the deceased without her permission. 14 To prove manslaughter on the second basis, the Crown would set out to prove the existence of a duty of care, breach of that duty by act or omission, and that the negligence was demonstrably below the standard of care that a reasonable person would have exercised in the circumstances and such as involved the high risk of death or serious injury. Further, the Crown would set out to prove that the negligence was causative of the death of the deceased. 15 Upon this analysis, Mr Wendler submitted that all the evidence relied upon in the previous trial for the conviction for the offence of aggravated break and enter and commission of a serious indictable offence will be relied upon to prove the offence of manslaughter. This is the basis upon which the plea in bar is advanced. 16 Mr Wendler referred to the decision of the Supreme Court of South Australia in R v O'Loughlin; ex parte Ralphs (1971) 1 SASR 219. In his judgment, Wells J said at 238: "Finally, it is noticeable that in references to that which constitutes a second jeopardy for the prisoner, words and phrases have been used that were not entirely free from ambiguity; a prisoner, it has been sometimes maintained, must not be placed in jeopardy of conviction for the same crime , sometimes for the same offence , sometimes for the same cause , sometimes for the same matter , sometimes, again, on the same facts . The equivocal character of the phrases emphasised have given rise to difficulties of interpretation, though at the same time they may have permitted greater freedom of development than would otherwise have been practicable." 17 In that same case, Bray CJ at 227-228: "Accordingly, I do not think I am prevented by authority from holding that a previous conviction is a bar to a subsequent prosecution (1) where the subsequent prosecution is for a charge of which the defendant was or could have been convicted on the previous occasion (the 'in peril' test); (2) where the subsequent prosecution is for a lesser offence totally comprised within a greater offence for which he was previously convicted; (3) in some cases where the subsequent prosecution is for a greater offence and he was previously convicted of a lesser offence totally comprised within the greater offence, such as for example charges of aggravated assault after a previous conviction for common assault, but this does not extend to all cases and it is not necessary to draw the dividing line here; (4) where in cases not falling within (3) the evidence or the facts necessary to support the second charge would have been sufficient to procure a legal conviction on the first (Vandercomb test as formulated in the fourth proposition of Lord Morris of Borth-y-Gest in Connolly's Case [1964] AC 1254 at p 1305, but adjusted so as to accommodate cases like Morris' Case (1867) LR 1 CCR 90; (5) whenever he is being prosecuted for some act or omission arising out of the same set of facts in respect of which he was previously convicted so that it can be said that he has previously been punished in respect of that act or omission, but it may be necessary in many cases to define sharply and precisely the facts constituting the act or omission in respect of which he was previously convicted in order to ascertain whether the second prosecution is really in relation to the same set of facts. Many cases may be caught by more than one of these rules." 18 I do not accept the submission that a plea in bar is available to either of these accused. It is essential to the proof of the offence of manslaughter to establish the death of the deceased either caused by unlawful and dangerous act or by criminal negligence. Proof of death is not an element in the offence of aggravated break and enter to commit a serious indictable offence. The serious indictable offence committed by the accused was the robbery. 19 Nor is it the case that in order to prove the commission of the crime of manslaughter, the Crown would have to prove all the elements of the offence under s 112 of the Crimes Act. The Crown does not have to prove that the accused broke and entered the dwelling house of the deceased. The Crown does not have to prove the robbery that followed. 20 In Pearce v The Queen (1998) 194 CLR 610 it was determined that a plea in bar is not available where the subsequent offence charged contains elements not included in the first offence. 21 In their joint judgment in Pearce, McHugh, Hayne and Callinan JJ said (at [18]): "It is clear that the plea in bar goes to offences the elements of which are the same as (R v Emden (1808) 9 East 437 [103 ER 640]; R v Clark (1820) 1 Brod & B 473 [129 ER 804]), or are included in (R v Elrington (1861) 1 B & S 688 [121 ER 870]), the elements of the offence for which an accused has been tried to conviction or acquittal. There are, however, decisions that a person may not be prosecuted for one offence when that person has previously been prosecuted for 'substantially the same' (Li Wan Quai v Christie (1906) 3 CLR 1125 at 1131, per Griffith CJ; R v O'Loughlin (1971) 1 SASR 219 at 253-254, per Wells J; cf R v Barron [1914] 2 KB 570 at 575, per Lord Reading CJ — 'practically the same' offence) offence, or for an offence the 'gist' or 'gravamen' (O'Loughlin (1971) 1 SASR 219 at 258, per Wells J) of which is the same as the subject of the earlier prosecution or, as was said in Wemyss v Hopkins ((1875) LR 10 QB 378), for the 'same matter' (Wemyss (1875) LR 10 QB 378 at 381, per Blackburn J). It may be suggested that these cases indicate that a plea in bar is also available if a person is charged with different offences arising out of substantially the same set of facts." 22 And later, after considering Wemyss, went on to say (at [24] and [25]): "[24] On closer analysis, therefore, it may be that Wemyss and other cases that are said to support the proposition that a plea in bar is available when a person is charged with different offences arising out of the same set of facts do not do so. Moreover, there are sound reasons to confine the availability of a plea in bar to cases in which the elements of the offences charged are identical or in which all of the elements of one offence are wholly included in the other. [25] Shifting attention to whether the offences arise out of the same conduct, or out of a single event or connected series of events, would be to substitute for a rule prohibiting prosecution twice for a single offence a rule that would require prosecuting authorities to bring at one time all the charges that it is sought to lay as a result of a single episode of offending. That would raise still further questions. How would a single episode of offending be defined? Would its limits be temporal or would they be founded in the intentions of the actor?" 23 It seems to me that, correctly analysed, there is an essential difference between the elements of the offence sought to be raised in bar and the elements of the crime of manslaughter which the Crown will endeavour to establish. 24 For these reasons I reject the submission that the earlier proceedings and conviction make available to either accused the plea in bar which has been advanced. 25 The alternative submission put forward on behalf of the accused is that, having regard to the prior history recorded above and the conviction for aggravated break and enter and commit serious indictable offence, an order for a permanent stay of proceedings on the indictment presented should be made upon the ground that pursuit of the proceedings would constitute an abuse of process. 26 It is to be accepted, as Mr Wendler submitted, that the categories of abuse of process are not closed. In R v Carroll (2002) 213 CLR 615, an authority to which Mr Wendler referred, Gleeson CJ and Hayne J said in their joint judgment at 650-651 (para [47]): "The circumstances that may constitute oppression or an abuse of process are various. The discretionary considerations that may be relevant in dealing with them cannot be rigidly confined." 27 Mr Wendler advanced the following reasons for submitting that it would be an abuse of process to allow the indictment for manslaughter to proceed: "1. There has been a final judicial determination which is binding and conclusive in respect of a set of facts underpinning the aggravated break enter offence. The DPP should not be permitted to re-litigate the determined facts for the sole purpose of proving a more aggravated offence arising from those facts. 2. To permit the indictment for manslaughter to proceed would breach the principle in Elrington's Case (supra), i.e. by trying the accused again on the same facts for a more serious offence. All this will achieve is concurrence in the sentencing proceedings. 3. The offence of aggravated break enter carries a maximum sentence of imprisonment of twenty years. Manslaughter carries twenty-five years. If the accused is convicted of manslaughter the Court would be prohibited, consistent with the High Court's decision in Pearce (supra), from sentencing the accused for common elements in both manslaughter and aggravated break and enter. The practical effect may well be that the accused would receive the same penalty for manslaughter as if he had never been convicted of the aggravated break and enter charge." 28 It seems to me that it would be a curious result indeed if the contemplated proceedings on the indictment for manslaughter amounted to an abuse of process having regard to the order made by the Court of Criminal Appeal that there should be a new trial on the charge of manslaughter and having regard to the fact that this indictment has been presented subsequently to the making of that order. 29 In any event, the conduct of the Crown has been to charge the accused with offences which occurred on the same occasion in the one indictment, and this led to the first trial. Manslaughter was available as an alternative verdict to the verdict of murder which the jury returned but which the Court of Criminal Appeal considered to be unavailable having regard to the particular facts. This is an important point of distinction between this case and R v Beedie (1997) 2 Cr.App.R 167, a decision upon which Mr Wendler relied. 30 If a stay of proceedings was ordered, this would prevent an adjudication on the question of whether or not there was any culpability in either of these accused arising from the circumstances of the death of the deceased. To my mind, no sound reason has been advanced upon which a stay of proceedings could be ordered. 31 The sentences imposed upon the accused for the aggravated offence having been quashed, the accused are to be sentenced for that aggravated offence when the outcome of the trial for manslaughter has been determined. If the accused are convicted of manslaughter, or if an accused is so convicted, then sentences can be imposed which are considered appropriate having regard to the totality of the criminality established. I do not accept, as Mr Wendler submitted, that the practical effect of any sentencing procedure would be that either accused would receive the same penalty for manslaughter as if he had never been convicted of the other offence. 32 Another matter to be considered concerns the position of a third offender, Shannon Styman. He pleaded guilty at the commencement of the trial to aggravated robbery and the jury has found him guilty of the manslaughter of the deceased. Shannon Styman stood trial with the accused and pursued no appeal following his conviction and sentence. Shannon Styman was obviously considered to be less culpable in the circumstances of the death of the deceased than his co-accused, as the verdict of guilty of manslaughter indicates, and he was, of course, dealt with more leniently by the sentencing judge. Barr J took account of the circumstance that Shannon Styman had indicated a willingness to plead guilty to manslaughter and also that he gave evidence inculpating the co-accused. He was sentenced to eight years imprisonment for aggravated robbery, and to fourteen years imprisonment for manslaughter. The latter sentence was fixed to commence twelve months after the former, and a non parole period of nine years was set. It has been submitted by the Crown that it would not be in the public interest to stay the trials of the accused for manslaughter in circumstances where a conviction for manslaughter was available at the first trial and where a co-offender considered less culpable was convicted and sentenced on the charge of manslaughter. In my opinion, that submission has merit. 33 I add that if the proceedings were to be stayed and the accused remained to be re-sentenced only for the aggravated offence on which they presently await sentence, it would not be open to the sentencing judge to take into account the fact that the deceased died after being tied up and left alone in her house, as the Crown contends that she was. If the sentencing judge was to bring into account in the re-sentencing of the accused the death of the deceased, this would offend the principle in R v De Simoni (1981) 147 CLR 383: see in particular the judgment of Gibbs CJ at 389 and following. 34 For the reasons stated, I consider that the presentation of the indictment for manslaughter and the proceedings contemplated pursuant to it involve no abuse of process, and the application for a stay of proceedings is accordingly rejected. 35 The trial will therefore proceed and a jury will be empanelled at the first available opportunity. ********** 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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