New South Wales Court of Criminal Appeal CITATION: Tekely v R; Nagle v R [2007] NSWCCA 75 HEARING DATE(S): 16 February 2007 JUDGMENT DATE: 23 March 2007 JUDGMENT OF: McClellan CJ at CL at 1; Sully J at 2; Howie J at 128 DECISION: In the appeal of Alan John Tekely: (1) Appeal against conviction dismissed (2) Leave granted to appeal against sentence (3) Appeal against sentence dismissed; In the appeal of Craig Michael Nagle: Appeal against conviction dismissed LEGISLATION CITED: Crimes Act 1900 (NSW) Criminal Appeal Act 1912 (NSW) M v The Queen (1994) 181 CLR 487 MFA v The Queen (2002) 213 CLR 606 R v Ita (2003) 139 A Crim R 340 CASES CITED: Weiss v The Queen (2005) 224 CLR 300 R v Forbes [2005] NSWCCA 377 Reg v Bolt (2001) 126 A Crim R 284 R v Moussa [2001] NSWCCA 427; 125 A Crim R 505 Alan John Tekely PARTIES: Craig Michael Nagle Regina FILE NUMBER(S): CCA 2006/2499; 2007/144 D. Arnott SC - Crown COUNSEL: P. Doyle - Tekely A. Haesler SC - Nagle SOLICITORS: S. Kavanagh - Crown Marks Kleef & Assoc. - Nagle LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 04/11/1505 LOWER COURT JUDICIAL OFFICER: Hock DCJ LOWER COURT DATE OF DECISION: 2 June 2006 IN THE COURT OF CRIMINAL APPEAL 2006/2499 2007/144 McCLELLAN CJ at CL SULLY J HOWIE J 23 March 2007 Alan John TEKELY v REGINA Craig Michael NAGLE V REGINA Judgment 1 McCLELLAN CJ at CL: I agree with Howie J. 2 SULLY J: Introduction and Common Background 3 On 6 March 2006 the present appellants, Mr. Alan John Tekely and Mr. Craig Michael Nagle, jointly stood trial before her Honour Judge Hock, sitting in the District Court at Sydney. They were so tried upon a joint indictment containing three counts. 4 Count 1 charged each appellant with the manslaughter of one Antoni Rolfi on 20 December 2000 at Fairfield. 5 Count 2 was laid in the alternative and charged each of the appellants with having assaulted, at the same time and place, the same victim, thereby occasioning to him actual bodily harm. 6 Count 3 charged the appellants jointly with having unlawfully imprisoned Antoni Rolfi at Fairfield on 20 December 2000. There was a third person presented in connection with Count 3 but that is a matter of no moment in connection with the present appeals. 7 The jury found each of the appellants guilty as charged in Counts 1 and 3. 8 The offence of manslaughter, as charged in Count 1 of the indictment, contravenes section 24 of the Crimes Act 1900 (NSW). It attracts upon conviction a statutory maximum penalty of imprisonment for 25 years. The offence of unlawful imprisonment, as charged in Count 3 of the indictment, is a common law offence and the penalty in any particular case is at large. 9 In due course Mr. Tekely was formally convicted of the offences of which the jury had found him guilty. For the offence of manslaughter he was sentenced to imprisonment for a term of 6 years to commence on 27 January 2006 and to expire on 26 January 2012, with a non-parole period of 3 years 9 months to commence on 27 January 2006 and to expire on 26 October 2009. For the offence of unlawful imprisonment he was sentenced to imprisonment for a fixed term of 6 months to commence on 27 January 2006 and to expire on 26 July 2006. 10 Mr. Nagle, also, was in due course formally convicted of the two offences of which the jury had found him guilty. For the offence of manslaughter he was sentenced to a term of imprisonment of 5 years to commence on 29 January 2006 and to expire on 28 January 2012, with a non-parole period of 2 years 9 months to commence on 29 January 2006 and to expire on 28 October 2008. For the offence of unlawful imprisonment he was sentenced to imprisonment for a fixed term of 6 months to commence on 29 January 2006 and to expire on 28 July 2006. 11 Mr. Tekely now appeals against his conviction for manslaughter. He seeks, also, leave to appeal against the asserted severity of his sentence. He relies upon only one ground of appeal against conviction, namely, that the verdict of the jury is unreasonable and cannot be supported having regard to the evidence at trial. He advances two grounds in support of his application for leave to appeal against sentence: first, that the sentence imposed upon him for the offence of manslaughter is manifestly excessive and, secondly, that the learned sentencing Judge erred in finding that he was "only entitled to delay up to 21 October 2005". 12 Mr. Nagle, too, appeals against his conviction for manslaughter. His grounds of appeal are more discursive than those of Mr. Tekely. Mr. Nagle's grounds of appeal against conviction are: "(1) Her Honour erred in her directions to the Jury by inviting them to consider the co-offender's record of interview as part of the crown case against the appellant for manslaughter. (2) Her Honour erred in her directions to the Jury on manslaughter and joint criminal enterprise. (3) The convictions were unreasonable because: a. There is a reasonable doubt whether the appellant was presently participating in a joint criminal enterprise when the blows said to have caused death were inflicted. b. The blows said to have caused death were not objectively dangerous. c. The prosecution failed to exclude as a reasonable possibility that the injuries causing death had been occasioned prior to the incident said to involve the appellant." 13 Mr. Nagle, too, seeks leave to appeal against the alleged severity of the sentence passed upon him for the manslaughter offence. There is only one ground advanced in support of that application, namely, that parity of sentences "requires some downward adjustment of sentence should the co-accused (sic) sentence appeal be successful". 14 The relevant facts are, in the case of each appellant, extensive and somewhat complicated. It will be, therefore, useful to begin a canvass of the relevant facts by quoting the following succinct and helpful overview which introduces the Crown's written summary of the trial: "It was the Crown case that Mr Tekely struck a number of blows to the abdomen of the deceased and at least one of the blows caused internal injuries which led to the death of the deceased. It was the Crown case that those assaults were an unlawful and a dangerous act amounting to manslaughter. In the alternative it was the Crown case Mr. Tekely assaulted the deceased occasioning actual bodily harm. It was the Crown case that Mr. Tekely was also guilty of keeping the deceased unlawfully restrained and detained against his will, during which time he was assaulted, lost consciousness and died shortly afterwards. ……….. ." "It was the Crown case that Mr. Nagle , by assaulting the deceased and assisting Mr. Tekely, was guilty of manslaughter by joint criminal enterprise, in that he was present as a party to an assault that amounted to a dangerous and unlawful act. In the alternative it was the Crown case Mr. Nagle assaulted the deceased occasioning actual bodily harm. It was the Crown case that Mr. Nagle was also guilty of keeping the deceased unlawfully restrained and detained against his will, during which time he was assaulted, lost consciousness and died shortly afterwards. ……. ." 15 The bare outline thus provided is fleshed out helpfully and as follows in the remarks on sentence of the learned primary Judge: "By way of background the offenders, the deceased, Antoni Rolfi, his brother Shannon Rolfi, Roslyn Tekely the wife of Alan Tekely and Gunter Horvath shared a house at 5 Polding Street, Fairfield. The members of that household were apparently all friends and took care of each other. However, on 19 and 20 December 2000 events occurred which led to the tragic and avoidable death of Antoni Rolfi. Those events unfolded in the following way. On the weekend of 16 and 17 December Mr. Shannon Rolfi who is six years older than his brother and Antoni who had turned twenty on 11 December left Sydney and they drove to Orange to visit their mother and sister. The young men returned to Sydney on Sunday evening without any unusual occurrence although Shannon noticed on the way home that his brother was a little quieter than usual. On Tuesday 19 December Antoni went to work as he usually did. However, at about the middle of the day he was noticed to be unwell. He left work after asking his boss for $38 for food and he was given $20. Mr. Rolfi was next seen at Joe's Fruit World in Wetherill Park at about 2.00 p.m. to 2.30 p.m. He appeared confused and was acting somewhat strangely. He bought some fruit seconds, that is slightly bruised fruit which was not put up for regular sale. At about 5.20 p.m. Mr. Antoni Rolfi was seen across the road from 61 Polding Street, he was on his knees holding onto a shopping trolley. Later the same day he had a conversation with a homeowner, Mr. Fa, in Teresa Street, Smithfield. He had the fruit in a trolley. Mr. Fa described him as friendly and happy but he was acting strangely, as though he knew Mr. Fa. He didn't see him again after about 7 p.m. or 7.30 p.m. At about 9 p.m. Antoni returned home. His housemates, including his brother, had been concerned about him. He walked in naked holding a filing cabinet which contained fruit. He was not making a great deal of sense and in particular he was talking of Andrea, "his true love". The evidence established that Andrea, a family friend roughly the same age as Antoni, had neither seen nor spoken to him since 1993. Ultimately, Antoni went to bed after displaying some disturbing behaviour in particular loading a spear gun and waving it at or threatening his housemates with it. On 20 September 2000, Roslyn Tekely, Craig Nagle and Gunter Horvath all left the house at about 6.00 a.m. to go spear-fishing. Shannon Rolfi was dropped at work at Mascot on the way. That left the offender, Alan Tekely and Antoni Rolfi alone in the house. What happened next is unclear but later in the morning Tekely rang his wife to ask her to return as there was something wrong with Antoni. She, Mr. Nagle and Mr. Horvath were already almost home and they arrived just after 12 noon. The house was in disarray and things had been smashed. Antoni was in a very disturbed state. Mr. Tekely said that Antoni had threatened him with a small axe which was kept on display in the kitchen. Mr. Horvath gave evidence, which I accept, that shortly after he walked in the door he saw the offender Tekely strike Antoni with a backhand blow to the face with such force that Antoni lost his balance. Within minutes of entering the house, Mrs Tekely left again to collect Shannon Rolfi so that he could help to control his brother. That round trip to Mascot and back took approximately ninety minutes. On their return an even more chaotic scene prevailed. Shannon described it as mayhem, (p 66 of the transcript). He was confronted by his brother in a state that he had not witnessed for many years. Antoni was threatening to kill them and he needed to be restrained. Shannon attempted to do that as he had done many years before by holding him in a bear-hug until he calmed down. Shannon Rolfi gave evidence at p 50 that "he was screaming and lashing out, it reminded me of one of the fits he had when he had AHDD as a child". I interpolate here that Antoni had Attention Hyperactivity Deficit Disorder as a child. The evidence established that once diagnosed and placed on appropriate medication his behaviour improved dramatically. As he grew older he had less need for medication and had ceased taking it about two years prior to his death. Shannon gave evidence that Antoni became more and more uncontrollable kicking out at anyone who came near. He was screaming, "I hate you all and I'm going to kill you all" and Shannon gave evidence that he, Antoni, had a wild look in his eyes. Ultimately, he couldn't hold him and he was handed a pair of handcuffs. He placed Antoni in a chair and he was handcuffed with his hands behind his back. Antoni was kept like that for some time during which time the offender Tekely administered the blows which caused his death. I am satisfied beyond reasonable doubt that there were at least four such blows of considerable force to Antoni's stomach, forehand and backhand. The offender Tekely also slapped Antoni to the face about ten times. Indeed he admitted doing so at answer 293 of his recorded interview. The offender Nagle joined in the assault on Antoni by striking him to the face or head at least twice. It is difficult to determine how long Antoni was restrained in the chair but it must have been at least an hour, probably longer. At some stage Antoni lost colour and began to lose consciousness. The handcuffs were removed and he was taken outside. The offenders finally realised that he was seriously ill. Mr. Nagle called an ambulance and Mr. Tekely performed mouth to mouth resuscitation. The ambulance officers arrived at 2.57 p.m. but Mr. Rolfi was already dead." The Cause and Time of Death 16 Two legally qualified medical practitioners gave evidence that touches in various ways on the issues of the cause and time of the deceased's death. 17 The first of them to be called in the Crown case was Dr. Dawood Haddad. Dr. Haddad gave evidence that he was in general practice at the Fairfield Chase 24 Medical and Dental Centre at Fairfield. He gave evidence that he had been associated with that practice during the years 1999 and 2000. Dr. Haddad itemised fourteen occasions between 14 October 1999 and 20 June 2000 upon which the deceased had attended at the Clinic with various complaints. Several of those visits were for treatment for diarrhoea and for other gastric complaints. 18 The fifth of the fourteen consultations took place on 21 January 2000. The deceased presented with complaints of abdominal pain and diarrhoea. His physical examination results were normal. There was no abdominal tenderness. 19 Barely a month later, on 15 February 2000, the deceased paid his sixth visit to the clinic. He was complaining, once again, of diarrhoea. There was no abdominal tenderness. There was nothing to indicate any serious injury or any serious disease. 20 The relevant records of the clinic did not contain any indication that the deceased's medical history included a previous condition of ADHD. 21 The principal body of evidence called by the Crown on the topics of cause and timing of death was given by Dr. Peter Ellis, the Director of Forensic Medicine at the Institute of Clinical Pathology and Medical Research at Westmead Hospital. Dr. Ellis gave unchallenged evidence that his principal function was that of performing post mortem examinations on the order of the Coroner. Dr. Ellis' practical experience in that connection was extensive and no challenge was made to his professional qualifications or abilities. 22 Dr. Ellis detailed the following injuries that he had noted on post mortem examination of the body of the deceased: · An area of bruising which was speckled and red in colour and which was located around and under the belly button. · There was a small abrasion next to that area of bruising; and there was a number of small abrasions on the lower part of the deceased's abdomen at a point near the groin and with some accompanying bruising. · There were some abrasions on the upper part of the deceased's chest. · There was a number of small bruises "….. like a band of bruising on the back of both wrists, and on both sides within that bruising was some abrasion". The presence of both that bruising and accompanying abrasion is normally indicative of the surface of the skin having been damaged "by some very blunt object". The injuries thus observed to the deceased's wrists were consistent with hand-cuff injuries. 23 In addition to the foregoing specific injuries, Dr. Ellis diagnosed serious injuries to the deceased's mesentery and colon or large intestine. It was Dr. Ellis' opinion that both those injuries had occurred at the same time and that both were recent. Dr. Ellis explained: "The definition of 'recent' in this case would be most likely less than 12 hours. I would not exclude less than 24 hours. I would be a little surprised if it was more than 24 hours but I have seen enough to know there is enough variation that I could not completely exclude that." 24 Dr. Ellis explained that his references to hours were references to hours before the occurrence of death. 25 Dr. Ellis gave in chief the following description of the damage, as he had seen it, of the deceased's mesentery: "Q. If I can take you to the gastrointestinal system examination. Just generally what did that entail? A. Well, the examination involves looking at the gastrointestinal track, which is the oesophagus, the stomach, the small and large bowel, the liver and other abdominal organs, and in this particular case the first thing to see was that there was some fresh blood lying quite loosely in the abdominal cavity, that is within the cavity but actually outside the organs. But there was also quite a lot of blood at the back of the abdomen. That was not lying loosely. There are tissues like the kidneys and various other organs that are actually stuck to the back of the abdomen and there was quite a lot of blood in those tissues around there as well. So there was a lot of bleeding into the abdomen. Q. During your examination did you find the cause of that bleeding? A. Yes, the intestines are as most people know very long tubulous structures but form various loops and rolls within the abdomen. But they are all in fact tied down by a very thin layer of tissue which is called the mesentery and it is actually attached to the back of the abdomen. HER HONOUR: Q. Can I ask you to spell that? A. M-E-S-E-N-T-E-R-Y, and within the mesentery are blood vessels. In fact, that's how the intestine itself and the bowel actually get its blood supply. And there was considerable tearing of that mesentery at the back of the abdomen, and in particular that part of the mesentery that holds the upper part of the bowel down. So there was tearing of that mesentery with damage to the blood vessels and thereby leading to the bleeding that I observed. There was also damage to the wall of the colon --- CROWN PROSECUTOR: Q. Just before we move onto the colon, the position where the tear to the mesentery was, would you be able to relate that externally on the body? A. Well, it is very difficult to do in the deceased person because the bowel in particular moves around and changes position depending on whether the individual is standing upright or lying down. Obviously I am examining the body lying flat, and therefore the damage which appears to be fairly high up in the middle of the abdomen may actually be lower down in somebody who is standing up, and I can't tell where it is in somebody who is standing up. But if I had to narrow it down to an area I would say in the middle and in the upper half of the abdomen. Q. Earlier when you told the jury about the cause of death if you can just continue on from the mesentery, was that the cause of death the damage to it? A. Yes I believe that essentially the blood loss and the irritation that you get in the lining of the abdomen, it produces shock and I believe that to have been the cause of death. Q. Would that shock lead to cardiac arrest? A. Well, ultimately if it is not managed properly, if it is not treated properly. Not always but it certainly can do. Q. In this case would you have expected that to follow, that is the damage to the mesentery causing the loss of blood, shock and then at some later point in time cardiac arrest? A. That's what I believe to have been the chain of events." [T 308, 309] 26 Dr. Ellis gave the following evidence in chief concerning the injury, as he had seen it, to the deceased's colon: "Q. I think I stopped you when you were going on to the colon? A. Yes, the colon is just another word for the large intestine, the large bowel. It is shorter than the small intestine although it is much wider, and it starts really at the bottom right hand side of the abdomen where people know where their appendix is and it travels upwards, across the abdomen and then down the left hand side before it becomes rectum and passes out. The part of the colon that travels across the abdomen is called the transverse colon, that is just the intestine, and within that part of Mr. Rolfi's transverse colon there was a split in the outside wall of the front of the colon. And some of the lining was bulging through that split and there was some bleeding in the wall of the colon in that area. It wasn't completely perforated. It wasn't, for example, a hole from the centre of the colon to the outside, but it was shall we say half split. CROWN PROSECUTOR: In your report doctor you refer to the rectum then you say, "There are also extensive collections of blood in the retro colic gutter on the left side and in that area anterior to the left kidney? A. Yes. Q. Was there any blood you saw near the rectum? A. Well extending into the outside, not the rectum itself, not the wall of the rectum, but the rectum is just a continuation of the colon and so once blood gets into the soft tissues, the loose tissues, then it can travel through those tissues almost unstopped, particularly with the effects of gravity so that it can spread, as it did here, around the colon, the left side, then further down toward the rectum but the rectum itself was not damaged. Q. Moving to the kidneys. Did you notice anything in relation to the kidneys? A. Only that there was quite a lot of blood around them, particularly on the left hand side, but there was some blood around both of them. Again that is all part of the general spread of blood that I previously described. The kidneys themselves appeared normal and there was bleeding further down the urinary tract near the bladder. Again all part of the same blooding process." [T 309, 310] 27 Dr. Ellis explained as follows his reason for having formed the view that the observed injuries to the deceased's mesentery and colon had occurred at the same time: "Well they are in roughly the same area and I guess I felt that there was, I believed, well I know, there was evidence of blunt trauma. If they had occurred at different times it would imply two separate incidents of blood (sic but read: blunt) trauma both in exactly the same area. Not impossible. I don't think doing a microscopic examination would have been able to distinguish that fact any way." [T 312] 28 Dr. Ellis was asked a number of questions in chief about the type of force that would have been, in his experienced professional opinion, required in order to cause the observed damage to the deceased's mesentery and colon. Dr. Ellis' evidence in that connection is: "Q. If I can just take you now to ask you in your opinion the type of force that would be required to cause the injuries that you detected to the mesentery and the colon? A That type of injury is caused by the application of a significant blunt force to the top of the abdomen. To be able to damage internal organs in the abdomen you really need to apply quite a lot of force. The skin is quite soft there, there are no sort of bony structures, except for the back of the body where the backbone is. So you basically have to squeeze the organs between your force, whether a punch, kick or some object being used, in other words the skin and the backbone, and that might be several inches. So to be able to squeeze the internal organs enough to actually tear them you have to apply quite a lot of force. Q. Would it be possible to cause those injuries by the use of a flat hand either the front of the hand or the back of the hand? A. Using the flat of the hand spreads any force that you apply over that area. If you can imagine the effect of force that is going to depend on the speed and weight of the object you use and if it is your hand, in effect your body weight and how fast you swing your arm or apply your punch, whatever, together with the area of the skin over which it actually contacts, if I can use the example if you use the flat of the hand then the force that you apply is spread over that fairly large area, the flat of the hand, but if you were to use it as a fist then that same force is actually applied over a much smaller area. It is the smaller area that makes contact with the skin so more effective in causing damage. I believe using the flat or the palm side of the hand it would be really difficult to cause this kind of injury. I could not say it is impossible but you would have to swing your arm incredibly hard to do that because although you hit that skin very hard it would be diffused, dissipated, across the surface of the hand. If you turn the hand over or use the back and the hand was maybe slightly bent so that what you, in effect, did was strike the abdomen with the knuckles, then it might act like a punch and it would be easier, I would say, to produce this kind of injury using the back of the hand as long as that back of the hand was slightly bent. Q. Slightly bent rather than flat? A. Correct. Q. Would it increase the damage caused to the organs that you saw if the victim has very little or no fat on the stomach? A. I think it is reasonable to say if the front of the abdomen was very thin you are more likely to get damage from any particular force than if there is a thick layer of fat, yes. Q. If the victim is seated in the chair with a back on it and has his hands restrained behind his back would that have any effect on the injury being caused? A. Yes in the sense that if the victim is, shall we say free standing, has nothing behind him, then if you apply a large amount of force to the front, the first thing that will happen is you will just push the body backwards so the force you apply is converted to moving the body backward and you would not necessarily get damage inside. If the body is restrained in some way so that it cannot move backwards and sitting in a fixed chair while you do this then all the force you apply will be converted into the internal organs because none of it can be applied to moving the body backward. So you are more likely to get internal injury if the body is restrained and the same amount of force is used versus the body not being restrained. Q. Have you seen these types of injuries before? A. Yes. Q. Would they also be consistent with a motor vehicle accident? A. Well they are consistent with blunt trauma to the front of the abdomen so if any hard object strikes the abdomen with enough force you would have this kind of injury. I have to say that a motor vehicle, being struck by a motor vehicle, would cause other injuries and while the abdominal injury might be consistent, although it is very unusual to see this kind of injury in a motor vehicle accident, what you do see, of course, are broken bones because cars are pretty large objects and they tend to strike other parts of the body, in fact probably before they strike the top of the abdomen." [T 313, 314] 29 Dr. Ellis, when cross-examined by counsel for Mr. Tekely, said that he would not expect to find that the grabbing of the flesh of the deceased's stomach with a hand and the rolling thereafter of the hand into the stomach, had caused deep internal injury. Dr. Ellis did not think that the amount of force suggested by a motion as thus described would be sufficient to damage internal organs. Force of that degree, Dr. Ellis thought, might well cause some bruising on the skin's surface in the area of the grip; and there might be some tearing of the small blood vessels in the skin. 30 Dr. Ellis was cross-examined about the possibility of a car accident as the cause of the injuries which brought about the deceased's death. In that connection Dr. Ellis gave this evidence: "Q. Are you able to exclude the deceased having been hit by a car as causing that injury? A. That carries a lot of generalisations or assumptions. As I have indicated before, all I can say is that the internal injury is consistent with blunt trauma to the front of the top of the abdomen and I cannot say what it is that hit the top of the abdomen so if there is some part of the car that could strike just the top of the front of the abdomen, maybe a corner of a bull bar, that is a possibility. I have not seen that in the sense that I would expect to see other evidence of impact and I certainly saw no other evidence of impact, so I would find it extremely unlikely. You would have to postulate a vehicle striking only at part of the abdomen." [T 317] 31 Counsel at trial for Mr. Nagle, (not being Senior Counsel who appeared for Mr. Nagle at the hearing before this Court), taxed Dr. Ellis with an hypothesis that the injuries which brought about the deceased's death could well have been occasioned to the deceased, not on 20 December, but on 17, l8 or 19 December. Dr. Ellis' final position was put succinctly as follows: "A. I am not looking at the 18th. I am saying that is the outside. I would be looking at either the 19th or the 20th. Q. Yes, but you couldn't categorically exclude 18 December 2000 as a general proposition? A. Yes, that's correct." [T 320] 32 In answer to further questions put by leave to him by the Crown, Dr. Ellis gave evidence that his best estimate of the time of death was "a small number of hours before my examination which was 7.15, so what I would regard as mid-afternoon, mid to late afternoon". Dr. Ellis' attention was drawn to some evidence which had been given by an ambulance paramedic to the effect that he had found no signs of life in the deceased when he had first seen the body of the deceased at about 2.57 p.m. on 20 December. Dr. Ellis agreed that such fact was consistent with the time of death having been mid-afternoon on that day. 33 It is convenient to make, at once, some observations about the foregoing body of medical evidence. 34 First, the nature of the internal injuries was of such a character that they must have been caused by the application to the deceased's body of real and significant force, whether caused by slapping, by punching, or by some other method apt to fit the description "blunt force trauma". 35 Secondly, the end result of the attempts to draw Dr. Ellis into a concession that the fatal injuries to the deceased might have been caused by some such incident as a blow from a motor vehicle, did not get very far. Dr. Ellis' final position was that, for the reasons given by him in answers which I have quoted above, such an hypothesis was, in Dr. Ellis' own words, "extremely unlikely". 36 It was not contended at the hearing of these appeals that it had not been open to the jury to accept and to act upon the evidence of Drs. Haddad and Ellis, but particularly the evidence of Dr. Ellis. In that event it was well open to the jury, in my opinion, to be satisfied beyond reasonable doubt that the deceased had been very severely beaten, in whatsoever manner, to his abdomen and with the consequence of serious internal injuries, the sequelae of which brought about his death. The Evidence of Gunther Horvath 37 Mr. Horvath gave evidence under an indemnity from the Attorney-General of New South Wales. The indemnity related to a number of offences not being offences of either murder or manslaughter. It was a condition of the indemnity that Mr. Horvath give evidence in relation to, relevantly, the prosecution of the two present appellants. It was a condition of the indemnity that Mr. Horvath tell the truth when giving any such evidence. He had himself not been charged with any offence arising out of the events of 20 December. 38 As of that date Mr. Horvath had been living at the relevant premises for some six to eight months. There were in all six people living there. They were Alan Tekely, Rozlyn Tekely, Craig Nagle, Shannon Rolfi, the deceased, Antoni Rolfi, and Mr. Horvath himself. 39 Mr. Horvath gave evidence that on 20 December he went spear-fishing and scuba diving with Rozlyn Tekely and the appellant, Mr. Nagle. When the three of them were driving home from that expedition, Rozlyn Tekely received a telephone call from the appellant, Mr. Tekely. The gist of the call was that there was something wrong with the late Mr. Rolfi and that the three of them ought to return home as quickly as they could. They did so and Mr. Horvath, according to his evidence, walked into the dining room of the shared home. Mr. Tekely and the deceased were in the dining room. They were separated by a distance of about 6 inches. 40 Mr. Horvath gave evidence that as he walked into the dining room, he saw the appellant, Mr. Tekely, "just all of a sudden" swing around towards the deceased and strike the deceased on the right side of his face with the back of his, Mr. Tekely's, right hand. This appeared to knock the deceased off balance and the appellant pushed the deceased towards and onto a table. 41 The appellant then asked Mr. Horvath to help restrain the deceased. Mr. Horvath said that he had done as requested by the appellant, taking hold of the deceased's legs. At that point the appellant got some handcuffs out of a cupboard and quickly put the handcuffs on the deceased's wrists. The deceased was thus handcuffed "from behind his back". The appellant told Mr. Horvath that the deceased had been "wielding an axe at him with mad-dog eyes, and it happened so quickly and the way he said it was very quick, and he said that he'd been looking at him with mad-dog eyes and looking at every part of his body or limbs of his – part of his body like he wanted to hit him with …………" a small tomahawk that was normally kept in the kitchen on the top of a wall-mounted cabinet. 42 According to Mr. Horvath, he saw "what to me looked to be the silhouette of the axe, and I turned around to have a look. The axe was sitting what (sic) I thought was in the same position as if it hadn't been moved at all. I proceeded from that point – like in disgust, not knowing what to believe anymore – picked up that axe off the cabinet, or mounted cabinet, and took it out the back and just put it on top of a wardrobe, or could have been an old refrigerator, up on top so it was out of the way". 43 Thereafter Mr. Horvath's evidence of what he had subsequently seen proceeded upon the basis that he could only "remember excerpts and they may not be in succession". 44 With that qualification, Mr. Horvath gave evidence that he could remember: "……… - when Allan would repeatedly – and I don't want to exaggerate that – but he would back-hand him, forehand and back-hand, across the face and stomach, but I cannot put a count on that". At that stage, as I follow Mr. Horvath's evidence, the deceased was seated hand-cuffed on a chair and was fidgeting with the handcuffs. The appellant told Mr. Horvath to get a key and lock the handcuffs and eventually Mr. Horvath did so, thereafter putting the key in his pocket as instructed by the appellant. 45 Mr. Horvath described how the appellant had grabbed the deceased by the stomach, taking hold of the flesh of the stomach, clenching his hand around a roll of flesh and then tilting his hand forward, with the knuckles coming down, while still holding the roll of flesh. According to Mr. Horvath, the appellant had struck the deceased "…… back hand and forehand on his stomach …….. with ferocity.…… The slaps on the face were loud. The stomach still could have heard it but it wasn't that loud as when he hit the face. ……. It may have been the same intensity or ferocity but the sound was more dull coming from the stomach area.". [T 160] 46 According to Mr. Horvath, he could remember, leaving aside the taking hold of the roll of flesh, "only four times" when the appellant had struck the deceased to the stomach. Mr. Horvath could not put a precise count on the number of times he had seen the appellant strike the deceased to the face, but he thought that "it would have been more than ten", including the initial back-hander that he had previously described in his evidence. Mr. Horvath's best memory was that the slapping, both back-hand and forehand, to the deceased's stomach had been done in "one burst". He could not remember whether the deceased had then been seated or standing; but he had remarked that the deceased did not scream; did not, indeed, say anything; but gave Mr. Horvath the impression that the deceased was as though "……. in a zombie state, like he didn't feel anything and just can't understand why he didn't feel it". [T 161] 47 Mr. Horvath described subsequently in his evidence a point during the course of the events which he was describing, at which the deceased made some effort to try to "…….. lift himself up out of the chair". Mr. Horvath could not remember whether the deceased had been sitting on the chair with his hands hand-cuffed behind him or whether he had been sitting on the chair with his hands hand-cuffed behind him and behind the back of the chair. Certainly, the deceased was at that particular time still hand-cuffed behind his back. 48 Mr. Horvath's evidence-in-chief then turned to the alleged actions of the appellant, Mr. Nagle. In that connection Mr. Horvath gave the following evidence: "Q. Apart from seeing Alan slap Antoni did you see anyone else strike him in any way that day? A. Yes I did. Q. Who did you see strike him? A. Craig Nagle. Q. Are you able to say where that occurred in the sequence of events? A. I believe that was after Alan had hit him, struck him a few times, that may have happened after – sorry, I believe that would have happened after he told him not to be a smartarse and I'm not sure if Craig repeated the same words, 'don't be a effing smartarse'. Q. Just pause there. I don't think you've told us about that conversation so far. You saying Alan told Antoni don't be a? A. Not sure what it was – I remember Alan saying, 'don't be a smartarse'. Q. Was Antoni still seated in the chair at this stage? A. Yes. Q. You say it was after that that Craig did something? A. Yes. Q. What did he do? A. He hit him three times across the face, backhand and forehand. Q. How was Craig positioned at that stage, that is was he standing, kneeling? A. Standing. Q. How was he positioned in relation to Antoni? A. In front. He just rushed in. He had to step into it and then hit him. Not saying he had to hit him but he hit him, he had to walk in and hit him. Q. Was that the only time you saw Craig Nagle hit Antoni? A. Yes." [T 165, 166] 49 Shortly thereafter Mr. Horvath, according to his evidence-in-chief, observed that the deceased "….. was becoming discoloured in the forehead, he was going a yellowy colour". Some minutes later the hand-cuffs were removed and the deceased was taken outside into the fresh air. Attempts were made to resuscitate the deceased but they were unsuccessful. 50 Cross-examination of Mr. Horvath by counsel for the present appellant, Mr. Tekely, established that Mr. Horvath had been aged, at the relevant time, some 29 years and that he had been then employed as a mechanical engineer with Qantas. He had been diagnosed, in early January 2001 as it would seem from the dating given in evidence, as suffering from a condition related to schizophrenia and paranoia. The cross-examination established inconsistencies in various respects between the version of relevant events that Mr. Horvath had given in his evidence-on-chief, and the corresponding version of events given in his recorded interview with the investigating police. The cross-examination, as I read it, did not cause Mr. Horvath to retract any part, important from the point of view of the Crown case, of his evidence-in-chief. 51 The cross-examination of Mr. Horvath by counsel then appearing for the present appellant, Mr. Nagle, began by taking up the topic of Mr. Horvath's diagnosed paranoia and schizophrenia. Mr. Horvath agreed that there had been a particular occasion when he had thought that he had seen an unknown man appear in front of him; that he, Mr. Horvath, had gone to punch this unknown man; and that the unknown man had thereupon turned into a clock. There was no particular timing of this incident put to Mr. Horvath except for the proposition that the incident had occurred, in the understanding of counsel, "prior ……… to you being diagnosed as a paranoid schizophrenic ……."; a proposition with which Mr. Horvath agreed. 52 There was a great deal more cross-examination of a similar kind. Its general flavour, and the forensic point of it can be understood, at least in a broad way, from the following passages of cross-examination: "Q. Mr. Horvath would it be fair to say that you in relation to your evidence, and what you told the police, you were trying to reconstruct what you believe you saw happened and experienced on 20 December 2000 --- A. The events --- HER HONOUR: I reject that question. There are two questions there. You need to break it up. MOSCHOUDIS: Did you attempt to reconstruct what you saw on 20 December 2000? A. Yes in the events in which they occur. Q. Yes that's what I'm asking you. You agree with that don't you? A. Yes. Q. Now is it fair to say that and these, I'm using your words, "I tried but I may have ballsed(?) it up". Do you remember saying that? A. Yes. Q. Mm. So what I'm suggesting to you is and I'm not suggesting you've lied, I'm (not) suggesting anything like that Sir, what I'm suggesting because of your condition, your paranoia/schizophrenia, you perceive certain things to be real when in fact they are not, correct? A. Possibility, yes. Q. I'm sorry? A. Yes. Q. Yes. I'm not being critical, I'm not being disrespectful, I'm just stating a fact? A. Well my life was threatened. I felt like that was real but it was not. Q. That's right. Things like that. That's what I'm asking you. So what I'm saying is you – what appears to you to be real, appears to you to be real, do you understand? A. Sorry repeat that? Q. Well you have a perception, you see things a particular way, you hear things a particular way and you perceive that what you see and what you hear, is real, don't you? A. Mm hm. Q. Correct? A. Yes. Q. Okay and sometimes they are not, correct? A. Could you give me an example? A. Well the man appearing before you. You wanting to kill this man, punch him, clock --- A. Not kill him --- Q. --- you jump up and it's a clock? A. I said I felt threatened by that person – the person was not threatening me in any way. It was the duress of having my life threatened by that Rozlyn Tekely, to say that my family were going to be killed and if I'd crossed that border, Queensland border, I'd also be killed. Q. Yeah is that a responsive answer to the clock that I just asked you about? A. That's how it works in with that because I couldn't get to sleep and I had that delusion and I got up thinking that the person who was threatening me was going to come and kill me. Q. Yeah but no one was threatening you at that time? A. No. Q. But no-one was threatening you at that time, is that right? A. No. Q. Is that right? A. True. Q. Yeah no-one was threatening --- A. I --- Q. Now can I ask you this. What I'm saying is to you some things appear to be real when they're not, correct, yes? A. Only that if yeah well --- Q. Yes --- A. Only in that instance yes, that wasn't real" [T 217, 218, 219] 53 The concluding two questions in the Crown's re-examination of Mr. Horvath, and the answers given to them, were these" "Q. Now you were asked some questions by Mr. Moschoudis, the second barrister, about your history of perhaps delusions from time to time. Do you recall those questions? A. Yes. Q. Now as far as you were aware did you suffer from any delusions on 20 December 2000, that you were aware of? A. Not that I was aware of." 54 It will be necessary to return later herein to an assessment, as best this Court can make one, of the probative value of the entirety of Mr. Horvath's evidence. Mr. Tekely's Conviction Appeal 55 The jury at trial had before it a body of evidence, the significant parts of which were: first, the body of medical evidence given by Drs. Haddad and Ellis; secondly, the evidence of Mr. Horvath and thirdly, evidence of things said by the appellant himself during the course of an extensive recorded interview conducted with him by investigating police officers. The appellant did not himself give evidence at trial. 56 I have previously expressed some views about the body of expert professional evidence given by Drs. Haddad and Ellis, but particularly by Dr. Ellis. It is incontestable that the jury was entitled to accept and to act upon that body of medical evidence. In my opinion, and as I have earlier herein explained, it was well open to the jury, accepting that body of medical evidence, to conclude that the real cause of death was the inflicting of a number of very forceful blows to, relevantly, the abdominal area of the deceased's body. It was, in my opinion, also open to the jury to conclude, upon the basis of that body of medical evidence, that the Crown had successfully excluded as a reasonable possibility the hypothesis that the cause of death had been injuries sustained by the deceased as the result of the abdominal area of his body having been struck in a manner wholly unparticularised by a motor vehicle wholly unidentified. 57 So far as concerns the appellant, Mr. Tekely, the evidence of Mr. Horvath, if accepted, significantly strengthened the Crown case. It was direct eye witness evidence of the striking by the appellant of the deceased in exactly the way which Dr. Ellis, in particular, had described in the course of explaining his perceptions as to the cause of death. I will say, presently, something further about Mr. Horvath's evidence. 58 The appellant made, during the course of his interview by the investigating police, a number of statements which were capable, in my opinion, of strengthening the Crown case against him. 59 The police interview of Mr. Tekely took place on 22 December 2000. The interview commenced at 11.11 a.m. and it concluded at 3.17 p.m. In all, and including the necessary formalities, some 939 questions were asked. The jury at trial had a transcript of the interview and the video recording that had been made as the interview progressed. What is immediately important about the version of events given in that lengthy interview by Mr. Tekely are the following admissions made by him: · That he had in fact assisted in the restraint by handcuffing of the deceased. He conceded that it was possible that he had himself attached one of the cuffs to one of the deceased's wrists. · That he had slapped the deceased in the face on a number of occasions during the course of the relevant events. · That he had in fact slapped the deceased's abdomen. The appellant's explanation for this behaviour was that he had thought that by slapping the deceased's abdomen he would cause the deceased's stomach muscles to relax and so would at least help to some extent to settle the deceased down. The appellant did not give a particularly precise verbal description of the force used in the slaps to the stomach; but at one point during the interview he illustrated what he said was the approximate force that he had then used. This fragment of the total interview was played to this Court at the hearing of the appeal; and my own impression from what I then saw is that the blows, whether or not one would apply to them Mr. Horvath's description of ferocious, were certainly strong and pronounced blows. 60 It was, in my opinion, very much a jury question whether Mr. Horvath's evidence, or at least the significant parts of it, should be accepted as both truthful and reliable. There is, of course, no way of this Court's knowing what approach the jury actually took in that respect. Mr. Horvath was a witness about whom it was imperative that the jury have proper direction from the learned trial Judge as to the care which would need to be taken before the significant parts of Mr. Horvath's evidence could safely be accepted as both truthful and reliable. No objection was taken at trial, and none was taken before this Court, about the directions and warnings which the learned trial Judge did in fact give to the jury upon that topic. 61 It was clearly and correctly recognised on both sides of the record, and both at trial and at the hearing before this Court, that were the salient features of Mr. Horvath's evidence to be accepted as both truthful and reliable, then the Crown case against Mr. Tekely could not but be significantly strengthened. I accept, for my own part and without hesitation, that a bare reading of the transcript of Mr. Horvath's evidence suggests a need for any assessment of its probative value to be a circumspect one. The difficulty that confronts this Court when making such an assessment is, in my view, the obvious difficulty that this Court has neither seen nor heard Mr. Horvath, and so is in no position to have any sense of how he presented in the witness box. That difficulty seems to be compounded by the further, and obvious, consideration that the jury did not have to accept Mr. Horvath's evidence in its every detail. It was sufficient for the purposes of the Crown case that the jury, having attended dutifully to the trial Judge's directions and warnings, accepted that part of Mr. Horvath's evidence which gave so graphic a description of the appellant actually doing the very sort of thing which Dr. Ellis' evidence identified as the primary cause of death. 62 It is, however, my opinion that the Crown case against Mr Tekely, even if it be considered without the inclusion in it of the evidence of Mr. Horvath, was a case upon the basis of which it was open to the jury to find the appellant guilty as charged. 63 In that connection: · There was a plethora of evidence, in no way obviously unreliable, of a sequence of very odd behaviour, both on 20 December and in the day or two immediately preceding that date, on the part of the deceased, Mr. Rolfi. · There was, however, a total absence of evidence of anything that any eye witness had actually seen which provided a reasonable hypothesis, unconnected with Mr. Tekely, as to how the deceased suffered any injury of such a severity as would explain the damage that Dr. Ellis found to have been caused to the deceased's mesentery and colon. · The only concrete such hypothesis raised by the defence at trial was that of a motor vehicle accident causing the requisite injury to the deceased's abdominal area. The clear evidence of Dr. Ellis was that in his experienced professional view such an explanation was "extremely unlikely". There was no medical, or indeed any other, evidence to the contrary. · Once Dr. Ellis's opinion of the cause of death went to the jury, unchallenged save as for an hypothesis of forensic ingenuity but wholly unsupported by evidence, then the admitted assaults committed by the appellant upon the deceased assumed a causal significance much greater than they might otherwise have had. · That was so, because it was, in my opinion, entirely open to the jury to reject the defence contention that the admitted blows struck by the appellant to the deceased's abdomen had not been of sufficient number and/or force to cause the injuries leading to the death of the late Mr. Rolfi. It was, in my opinion, open to the jury, the foregoing itemised propositions once in place, to take the view that the appellant was minimising the severity of what he had done, admittedly, to the deceased. 64 When there is added to the foregoing propositions the further consideration that no objection was taken at trial, or at the hearing of the appeal, to any part of the summing-up by the learned trial Judge to the jury, then it seems to me that it was well open to the jury to find the appellant guilty of the manslaughter and of the unlawful imprisonment of the late Mr. Rolfi. 65 In my opinion Mr. Tekley's appeal against conviction should be dismissed. Mr. Nagle's Conviction Appeal – Ground 3 66 It is convenient to deal first with Ground 3 of Mr. Nagle's conviction appeal because that ground, were it to be upheld, would entitle Mr. Nagle to an acquittal at the direction of this Court. 67 Because of the way in which Ground 3 has been formulated, it is important to be precise about the issue which is tendered by a ground of appeal asserting that a conviction is unreasonable. The precise issue to be determined is whether upon the whole of the evidence at trial it was open to the jury to be satisfied beyond reasonable doubt that the particular appellant was guilty as charged. This is now well settled law: M v The Queen (1994) 181 CLR 487 at 493-494; MFA v The Queen (2002) 213 CLR 606 at 614, 615; 624. 68 The essence of the Crown case against Mr. Nagle was opened to the jury as follows: "I will just say this at this stage, the Crown is relying upon an unlawful and dangerous act and that unlawful and dangerous act is blows to the stomach of the deceased, Mr. Antoni Rolfi. …… . (T)he Crown case is just in a nutshell that it was the accused Allan Tekely that (sic) inflicted the blow or blows to the stomach or Mr. Antoni Rolfi, but Mr. Craig Nagle was there assisting him. The Crown case is that Mr. Craig Nagle also assaulted the deceased Mr. Rolfi but not to the stomach. What the Crown is relying upon, you might say, well, why is Mr. Nagle charged with manslaughter when he wasn't the one that (sic) inflicted the blow to the stomach? That leads to another legal issue which is called joint criminal enterprise. ……………. . (J)ust briefly what the Crown is saying is both Mr. Allan Tekely and Mr. Craig Nagle were part of a joint criminal enterprise to assault Mr. Rolfi." [AB 370, 371] 69 The important part of that formulation is, for present purposes, the assertion that, although the relevant blows to the stomach of Mr. Rolfi had been struck by Mr. Tekely, "…….. Mr. Craig Nagle was there assisting him". [emphasis added] This remained the Crown's essential position throughout the trial; and it was the basis upon which the Crown case went to the jury. 70 The antecedent discussion of Mr. Tekely's conviction appeal, and in particular the conclusions which I have expressed at paragraphs 52, 53 and 54 ante, are applicable mutatis mutandis to the case of Mr. Nagle. Those considerations sufficiently dispose, in my opinion, of the sub-grounds, if I may so describe them, propounded as paragraphs b and c of Ground 3. 71 Sub-ground 'a' as it stands, does not express with the necessary precision the issue that is available to the appellant in connection with his conviction appeal. The issue is not: "(whether) there is a reasonable doubt whether the appellant was presently participating in a joint criminal enterprise when the blows said to have caused death were inflicted". The issue correctly expressed is: "(whether) (it was reasonably open to the jury to find, upon the whole of the evidence presented to the jury at trial, that the appellant had been shown by the Crown to be, beyond reasonable doubt, guilty of manslaughter". 72 The Crown was entitled to rely at trial, in its case against Mr. Nagle, upon three bodies of evidence. The first, was the evidence of Drs. Haddad and Ellis; and I need say nothing additional to what I have earlier herein written in canvassing that body of evidence. The second, was the evidence of Mr. Horvath. The third, was the substance of the electronically recorded record of interview conducted between Mr. Nagle and investigating police officers. 73 I have quoted at paragraph 45 ante the evidence given in-chief by Mr. Horvath in connection with the relevant actions of Mr. Nagle. It is appropriate to add a further reference, being a reference to some evidence given by Mr. Horvath in cross-examination by counsel appearing at trial for the present appellant: "Q. Can I ask you this. In terms of Mr. Nagle, to sort of wake Antoni up Mr. Nagle also slapped him? A. No. Q. Once or twice, correct? A. He didn't pat him like that. Q. And it wasn't with sufficient force to cause him any injuries, you observed that didn't you? A. Yeah it wouldn't cause much no. Q. I'm sorry I couldn't hear you? A. It wouldn't have caused much injury at all. Q. If any, correct? A. But it wasn't a pat. Q. Yes well I'm just talking about the injury at this particular stage. Not sufficient to cause him any injuries would you agree with that proposition Mr. Horvath? A. Yeah. He slapped him like a wet paper bag." [T 245] 74 The electronically recorded record of interview took place on 22 December 2000. It commenced at 4.10 p.m. and concluded, including the necessary formalities, at 7.24 p.m. There are, those final formalities included, 553 numbered questions and answers. 75 In his answers to questions 278 and following, the appellant gives his version of what occurred upon his return to the home from his scuba-diving excursion. It is clear from those answers that, whatever else the appellant did or did not do, he was asked at the outset by Mr. Tekely to assist the latter in restraining Mr. Rolfi; and that he did precisely that. Mr. Nagle's version has Mr. Tekely, Mr. Horvath and Mr. Nagle himself present with the late Mr. Rolfi for about an hour and a half prior to the return of Mr. Rolfi's brother, Mr. Shannon Rolfi. The progress of the questioning of the appellant by the investigating police is, with respect to those concerned, not always logically structured; many of the appellant's answers are diffuse; and there are places at which the questioner and the appellant talk across each other. It is clear, nevertheless, that the appellant sought to give the police, at least initially, a picture of three people, Mr. Tekely, Mr. Horvath and the appellant himself, attempting jointly to restrain a person who was behaving violently and incoherently. The picture, at least initially, is of that continuing restraint enduring for about an hour and a half until the arrival of Mr. Shannon Rolfi. Thereafter, it is Mr. Shannon Rolfi who first lays hands upon his brother by way of gentle slapping of the face, apparently intended to rouse Mr. Antoni Rolfi from his then odd and incoherent state. That picture begins to change as the interview progresses. Beginning at question 454, the following sequence occurs: "Q. 454 O.K. who was hitting his stomach, Antoni's stomach? A. I have no recollection of anyone hitting his stomach. Q. 455 Did you hit his stomach? A. Not that I recall at the moment. Q. 456 Did, did you see Alan hit Antoni's stomach? A. Not that I can recall off-hand. I know there was one point when, when Ant was in the chair, sitting in the chair, he went as stiff as a board in the chair and the amount of pressure that he was using lifted not only himself out of the chair but he was pushing me back against the cabinet with enough force that I was actually in pain in the back by being pushed into the cabinet. I remember there being a noise and he folded back into a sitting position, but if you would ask me if someone hit him in the stomach I couldn't honestly tell you. Q. 457 And when I, when I say, hit, I'm referring to either a punch or a slap? A. Mmm. Q. 458 Maybe if I use those words, did you see anybody slap Antoni in the stomach? A. Not that I can recall." 76 There ensued some interruptions, the detail of which is not now relevant. And then, the following sequence: "Q. 476 O.K. Now just going back, I was asking you about whether you had slapped Antoni --- A. Mmm. Q. 476 --- or Ant, Antoni, pardon me, whether you had slapped him on the stomach --- A. Mmm. Q. 476 --- and you told me that you hadn't. A. I have no recollection of actually slapping Antoni in the stomach at all. Did not ask me specifically if I had ever slapped Antoni. I did slap Antoni once or twice around the head. I did not use sufficient force to cause an injury. I have had to do with Richard on more than one occasion, had to give him a slap to bring him back under control when he went totally schizo on me. I have had a great deal of experience in dealing with any schizophrenic state, I lived with him on and off for a period of about 3 years. …………………………….. Q. 479 On the day that Antoni died when yourself and others were restraining him when he was --- A. Yes. Q. 479(sic) --- thrashing out, did you see anybody slap him? A. Only on the face. I cannot honestly say I saw anyone hitting him anywhere else at all. Q. 480 Who's --- A. I don't recall hitting Ant in the stomach. I don't think I did. As I've stated already, my thoughts are not totally straight, I am trying to keep things straight. I am extremely tired, I am very fatigued and I am bordering on stress and shock myself. I can honestly say I seen (sic) Shannon hit Ant, I can say one occasion where Alan may have given him a slap, but to the best of my knowledge no-one else laid a hand on him. ……………………………. Q. 486 Where did Alan slap Antoni? A. The face. Q. 487 Did you see anybody slap Antoni on the stomach? A. No. Q. 488 Did you slap Antoni at all? A. Only on the face. Q. 489 How many times did you do that? A. Probably once, twice, I don't really know for sure. I don't handle stressful situations like that very well. I had to teach myself to do it when I was living with Rich because I refused to give up on my friends, but where Antoni's concerned I have, I honestly don't know at the moment. I cannot help you anymore in that respect, I don't know." 77 It was no part of Mr. Nagle's case at trial that the injuries which brought about Mr. Rolfi's death had been caused by blows struck by Mr. Shannon Rolfi. It was incontestable that blows of great severity had been struck to, in particular, the stomach area of Mr. Rolfi with fatal consequences, the detailed description and analysis of which has been canvassed previously herein and in connection with Mr. Tekely's conviction appeal, and need not now be repeated in detail. It was, in my opinion and for reasons previously herein explained, well open to the jury to be satisfied beyond reasonable doubt that those blows had been struck by Mr. Tekely. It was, in my opinion, well open to the jury to be satisfied beyond reasonable doubt that the blows were struck at some time or times during the hour and a half when, on the present appellant's own version, he, Mr. Tekely and Mr. Horvath were alone with the late Mr. Rolfi controlling in concert Mr. Rolfi's freedom of movement. It was well open to the jury, in my opinion, to be satisfied beyond reasonable doubt that the appellant, throughout that hour and a half, was acting in concert with Mr. Tekely; was present when Mr. Tekely struck the ultimately fatal blows; was himself then engaged with Mr. Tekely in an unlawful common enterprise to render Mr. Rolfi effectively helpless by hand-cuffing him and by assaulting him by striking repeated blows to various parts of his person. 78 Mr. Nagle, like Mr. Tekely, did not give evidence at trial. That entailed that the jury had to divine Mr. Nagle's version of events and then make an assessment of that version, as best the jury could do, upon the basis of the electronically recorded record of interview. 79 It seems to me that, making what I would regard as a fair assessment of the totality of the evidence constituted in part by the appellant's own statements in his interview; in part by the medical evidence as previously herein discussed; and in part by the evidence of Mr. Horvath, - as to which, see in particular paragraphs 57 and 58 - ante; it was reasonably open to the jury at trial to find the appellant guilty as charged. 80 In my opinion Ground 3 has not been established. Mr. Nagle's Conviction Appeal: Ground 1 81 This topic was first dealt with by the learned trial Judge at a very early stage of the summing-up. Her Honour instructed the jury: "You would be well aware that there are two accused standing trial and, of course, that you must consider each case separately. You would also be well aware that there is a common body of evidence and indeed all the evidence with the exception of the recorded interviews with each accused has been tendered against both accused. I am sure that it is clear to you members of the jury that Exhibit E, which is the interview with the accused Alan Tekely, can only be used by you when you are considering his case and in his case only. That is, you cannot consider that material in the Crown case against Mr. Nagle and Exhibit F, which is Mr. Nagle's interview, and Exhibit 1 which I have here, are only tendered of course in the case of Mr. Nagle, and cannot be used in the case of Mr. Tekely." 82 Her Honour next touched upon the topic in the course of giving to the jury the conventional directions proper to a case of an accused person who does not to give evidence at his trial. In that particular context her Honour said: "You would be well aware that each accused did give an account to the police officers in the recorded interview, which are the exhibits before you and that is material in the case for you to consider. The Crown relies on various parts of it and each counsel for the accused relies on various parts of those interviews and as I believe all counsel have told you neither accused had to take part in those recorded interviews." 83 Shortly thereafter her Honour gave to the jury certain documents embodying various of her Honour's instructions upon various matters of law. One such document, which her Honour described as an "elements document", is headed "Trials of Alan Tekely and Craig Nagle". (emphasis added) 84 As her Honour moved through the contents of the so-called "elements document", she reminded the jury that the Crown had to prove that the death of the late Mr. Rolfi had been caused by some deliberate act or acts of Mr. Tekely. In the course of developing that instruction, her Honour said: "As to the infliction of the blows, of course, the Crown relies on Mr. Horvath's evidence and, which I will remind you of in a moment, and Mr. Tekely's admissions in the recorded interview." 85 This is the first passage of the summing-up to which Ground 1 is directed. 86 A little later, and while still developing her instructions on the question of causation, her Honour referred in terms to particular answers given by Mr. Tekely in his interview with the investigating police. This is the second portion of the summing-up to which Ground 1 is directed. 87 Later still, and while directing the jury on the topic of an unlawful and dangerous act, her Honour told the jury that the jury would need to consider, among other relevant things, "………….. the degree of force used as demonstrated by Mr. Tekely in the interview at answer 261 ………". 88 At the conclusion of her summing-up to the jury, the learned trial Judge, before formally sending the jury out to consider its verdicts, inquired of each defence counsel whether he had any application for any re-direction. The appellant's then counsel made no application in connection with the directions to which I have referred. 89 It is now well settled law that, as the point was put in R v Ita (2003) 139 A Crim R 340 at 354: "A failure to raise objections at the close of the Judge's summing-up is usually a reasonably reliable indicator of its fairness and adequacy." 90 Although I have been given pause by that proposition, I have come very reluctantly to the conclusion that in the particular case of Mr. Nagle, Ground 1 has to be upheld. My reasoning is as follows. 91 When the learned trial Judge came to commence her Honour's canvass of the essential elements of the crime of manslaughter, she told the jury that she would deal with those elements "in respect of both accused at this stage". The essential elements that her Honour thus put to the jury were four in number, namely: [1] that the late Mr. Rolfi had died; [2] that his death had been caused by a deliberate act or acts of Mr. Tekely, that is, by a blow or blows to the stomach; [3] that there had been on foot at that time a joint criminal enterprise between Mr. Tekely and Mr. Nagle to assault the late Mr. Rolfi; and [4] that such assault was both unlawful and dangerous. 92 It was undoubtedly the case that the Crown had to prove both in its case against Mr. Tekely and in its separate case against Mr. Nagle that Mr. Tekely had struck to the late Mr. Rolfi's stomach a series of blows of such force as to have been causative in the requisite legal sense of Mr. Rolfi's death. 93 There was, however, a most important difference between the two cases in connection with the evidence available to the Crown in proof of that essential element of its case. 94 In the Crown case against Mr. Tekely, and as I have earlier herein explained when discussing Mr. Tekely's conviction appeal, the Crown had available to it in aid of its case on the element of causation, three distinct bodies of evidence, one of which was constituted by admissions made by Mr. Tekely himself in his recorded interview with the investigating police. 95 In the separate case of Mr. Nagle, however, the Crown had available to it only two of the three bodies of evidence that were available to it in Mr. Tekely's case. In Mr. Nagle's separate case, the Crown was entitled to rely, in proof of the element of causation, upon the evidence of Drs. Haddad and Ellis, and on the evidence of Mr. Horvath; but it was not at all entitled to rely upon any aspect of the admissions made by Mr. Tekely in his recorded interview with the investigating police. 96 Her Honour, having told the jury that she would deal with, relevantly, the element of causation "in respect of both accused at this stage", then proceeded to give a direction in terms of the first paragraph of which present complaint is made. 97 In my view that complaint is well founded. It seems to me that there is an unacceptable risk that the jury would have understood what her Honour said as entailing that, notwithstanding her earlier direction as to the limited use that might be made of each of the two separate recorded interviews, the Crown was entitled in its case against Mr. Nagle, to rely in part upon things said by Mr. Tekely in his recorded interview, insofar as concerned the Crown's obligation to establish beyond reasonable doubt the striking by Mr. Tekely of blows causative of the late Mr. Rolfi's death. The second passage of which present complaint is made followed very quickly on the heels of the first passage. In my opinion, and for the same reasons, the second of the present complaints is sound. 98 The third and final passage of which present complaint is made occurs much later in her Honour's summing up. The passage comprises, it is true, a comparatively brief reference to one only of the answers in Mr. Tekely's recorded interview; although that answer is the one in connection with which Mr. Tekely gave the demonstration, to which I earlier herein referred, of what he said was the force that he used in striking the relevant blows to the deceased's stomach. 99 This third reference to a portion of Mr. Tekely's recorded interview was in my opinion impermissible for the reason that it occurs in a portion of the summing-up in which her Honour is directing the jury on the topic of unsafe and dangerous acts; and it seems to me to be clear from the structure of the summing-up that the jury must have understood her Honour to be directing them in terms applicable to both of the separate cases then before the jury. 100 One thing upon which the law has always insisted in the context of a joint criminal trial is that there be no risk that the jury mistakenly gets the impression that it is entitled to take into account against one of the co-accused any part of the separate ERISP of another co-accused. The only exception that I can envisage to that principle is that of an express adoption by one co-accused of what another co-accused has said in the latter's ERISP; but that is an irrelevant consideration in the present particular case. The summing-up was, with respect to the learned primary Judge, both clear and careful overall; and it is most regrettable to have to find fault with it upon a point which her Honour was afforded no reasonable opportunity of correcting, because counsel at trial failed, for some reason(s) of which this Court is, of course, wholly uninformed, to take the point at trial. In my opinion, therefore, Ground 1 of Mr. Nagle's appeal has been made good. That being so, it is necessary to consider whether it is permissible to apply the proviso to section 6(1) of the Criminal Appeal Act 1912 (NSW). 101 This topic has recently been closely examined by the High Court of Australia: Weiss v The Queen (2005) 224 CLR 300. The reasons published are those of the Court, (Gleeson CJ, Gummow, Kirby, Hayne, Callinan and Heydon JJ). The principles which are applicable in the present particular matter are examined and explained at paragraphs 31 through 45. It is neither practicable nor, I apprehend, necessary to repeat the detail of all of those paragraphs. It is, however, useful for present purposes to reproduce paragraphs 41, 42, 43 and 44: "41. That task is to be undertaken in the same way an appellate court decides whether 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. The appellate court must make its own independent assessment of the evidence and determine whether, making due allowance for the "natural limitations" that exist in the case of an appellate court proceedings wholly or substantially on the record, the accused was proved beyond reasonable doubt to be guilty of the offence on which the jury returned its verdict of guilty. There will be cases, perhaps many cases, where those natural limitations require the appellate court to conclude that it cannot reach the necessary degree of satisfaction. In such a case the proviso would not apply, and apart from some exceptional cases, where a verdict of acquittal might be entered, it would be necessary to order a new trial. But recognising that there will be cases where the proviso does not apply does not exonerate the appellate court from examining the record for itself. 42. It is neither right nor useful to attempt to lay down absolute rules or singular tests that are to be applied by an appellate court where it examines the record for itself, beyond the three fundamental propositions mentioned earlier. (The appellate court must itself decide whether a substantial miscarriage of justice has actually occurred; the task is an objective task not materially different from other appellate tasks; the standard of proof is the criminal standard.) It is not right to attempt to formulate other rules or tests in so far as they distract attention from the statutory test. It is not useful to attempt that task because to do so would likely fail to take proper account of the very wide diversity of circumstances in which the proviso falls for consideration. 43. There are, however, some matters to which particular attention should be drawn. First, the appellate court's task must be undertaken on the whole of the record of the trial including the fact that the jury returned a guilty verdict. The court is not "to speculate upon probable reconviction and decide according to how the speculation comes out". But there are cases in which it would be possible to conclude that the error made at trial would, or at least should, have had no significance in determining the verdict that was returned by the trial jury. The fact that the jury did return a guilty verdict cannot be discarded from the appellate court's assessment of the whole record of trial. Secondly, it is necessary always to keep two matters at the forefront of consideration: the accusatorial character of criminal trials such as the present and that the standard of proof is beyond reasonable doubt. 44. Next, the permissive language of the proviso (the Court … may , notwithstanding that it is of opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal …) is important. So, too, is the way in which the condition for the exercise of that power is expressed (if it considers that no substantial miscarriage of justice has actually occurred). No single universally applicable description of what constitutes "no substantial miscarriage of justice: can be given. But one negative proposition may safely be offered. It cannot be said that no substantial miscarriage of justice has actually occurred unless the appellate court is persuaded that the evidence properly admitted at trial proved, beyond reasonable doubt, the accused's guilt of the offence on which the jury returned its verdict of guilty." 102 I have previously herein examined, and expressed a view about, the combined effect of the body of evidence constituted by: first, the relevant medical evidence; secondly, the relevant evidence of Mr. Horvath; and thirdly, the relevant responses of the appellant himself given during the course of his electronically recorded interview with the investigating police. That earlier examination and discussion was directed to the question whether it had been reasonably open to the jury to find, based upon that entire body of evidence, that the appellant was, beyond reasonable doubt, guilty of manslaughter. It is necessary to return to that body of evidence in connection with the applicability in the appellant's case of the proviso. The focus is, however, different in the ways explained in Weiss. 103 Having made that assessment, I have come to the conclusion that the present appellant's case is one in which it would be proper to apply the proviso. The combined effect of the three categories of evidence of which I have earlier spoken seems to me to be sufficient to establish that, beyond reasonable doubt, the present appellant was present at the time when the ultimately fatal blows were struck by Mr. Tekely and was then engaged with Mr. Tekely in an unlawful common enterprise: namely, the enterprise of unlawfully detaining and physically assaulting the late Mr. Rolfi. Mr. Nagle's Conviction Appeal: Ground 2 104 The learned trial Judge's instructions to the jury did not essay any extended definition of the notion of an assault. The instructions emphasised, however, that the jury could not find the appellant guilty of manslaughter except upon the basis of a finding reached beyond reasonable doubt that the appellant had been present at the time when Mr. Tekely struck the ultimately fatal blows "….. knowing Mr. Tekely was assaulting Mr. Rolfi and intentionally encouraging or assisting him to do so". [SU 25] Instructions to the same effect can be found at SU 24. It is not necessary to repeat the detail. 105 The directions given at SU 25 were followed by a short mid-morning adjournment. In the absence of the jury the following interchange occurred between counsel then appearing for the appellant and the learned trial Judge: "COUNSEL: If I may your Honour. Just that your Honour's last comment in relation to essentially a two part description, first in assaulting him, being the deceased, and then when Mr. Tekely was assaulting Mr. Rolfi. My concern is the jury may think that by merely slapping him, that would be sufficient by Mr. Nagle slapping Mr. Rolfi, that would merely be sufficient to prove the case against Mr. Nagle, which isn't the Crown case. When the Crown opened, it made reference to it at page 12, it's at about line 50, "The accused Mr. Alan Tekely then inflicted the blow or blows to the stomach of Mr. Antoni Rolfi, but Mr. Craig Nagle was there assisting him". It's a concern that I have that the jury may misunderstand the reference to the – where your Honour has split them into two parts. Either he's there assaulting him – and that's not the Crown case, the Crown case was that he, Nr. Nagle, was there at the time that Mr. Tekely assaulted the deceased. That's just the concerning part that I wish to raise at this stage your Honour. HER HONOUR: But the Crown says at page 12, "The Crown case is that Mr. Nagle, Craig Nagle, also assaulted the deceased Mr. Rolfi, not to the stomach". That's how the Crown establishes that he was party to the joint criminal enterprise. COUNSEL: Yes, but there's no evidence that he was actually there at the particular time. HER HONOUR: At the time he was assaulting him? COUNSEL: Correct. HER HONOUR: Well, he has to be doesn't he? COUNSEL: For them to be successful, yes. HER HONOUR: I think we're at cross purposes. He must be there when he is assaulting Mr. Rolfi. You say there was no evidence that Mr. Nagle was there when Mr. Tekely was assaulting Mr. Rolfi. Is that you say – that's what you said in your address. COUNSEL: Correct. There's no evidence by Mr. Horvath to that effect. He doesn't place him there at the time the slaps to the stomach take place. HER HONOUR: Well, that's a matter for the jury. There is evidence that in the dining room were Shannon Rolfi, Gunther Horvath, Alan Tekely and Mr. Nagle, and there is evidence which the jury may accept, they may not accept, at page 165: "I believe that after Alan had hit him, struck him a few times, I believe after he told him not to be a smartass, I'm not sure if Craig repeated the same words 'Don't be an effing smartass. I remember Alan saying 'Don't be a smartass', he hit him three times across the face backhand and forehand". COUNSEL: Yes. The operative term is 'after'. HER HONOUR: Well that doesn't mean he – that doesn't – yes, still, that doesn't mean that he wasn't there at the same time. COUNSEL: We don't know which hits he's referring to, whether he's referring to slaps to the face or slaps to the tummy, but --- HER HONOUR: Well that's a matter for the jury. COUNSEL: Agreed. HER HONOUR: It's immediately after Alan has --- COUNSEL: It doesn't say immediately after. HER HONOUR: No, I understand that. I understand that, but it's not correct in my view to say that there is no evidence that they were together, it's a matter for the jury. COUNSEL: As your Honour pleases." 106 Shortly after the resumption her Honour, reminding the jury of certain of the submissions that had been made by the appellant's counsel at trial, said: "As to this element that is the joint criminal enterprise element, [counsel] on behalf of the accused Mr. Nagle, suggests you would not be satisfied beyond reasonable doubt that there was any such joint criminal enterprise or that Mr. Nagle was a participant. He reminded you that Shannon Rolfi gave no evidence that Mr. Nagle hit Mr. Antoni Rolfi or that Mr. Alan Tekely hit him. He said Mr. Shannon Rolfi said he had put the handcuffs on and they were released after a short time. [Counsel] suggested you would not find on the evidence that Craig Nagle was there, either hitting Mr. Rolfi at the same time as Mr. Tekely nor that he was there present ready to assist and in those circumstances, you would not be satisfied beyond reasonable doubt that he, that is Mr. Nagle, was a participant in the joint criminal enterprise. Of course if you are not satisfied beyond reasonable doubt that there was a joint criminal enterprise between Alan Tekely and Craig Nagle to assault Antoni Rolfi, then Mr. Nagle is to be found not guilty of manslaughter because it is only on the basis of joint criminal enterprise that he is liable." [SU 29, 30] 107 Subject to a consideration of one additional matter that was raised on the hearing of the appeal, I see no error in these particular directions. It is not without significance that counsel then appearing for the appellant did not seek re-directions after the conclusion of the summing-up. 108 At the hearing of the appeal a submission was put, the essence of which is, perhaps, most fairly conveyed by a direct quotation from the relevant oral submissions: "We say, there is a vast difference between the slap intended to snap someone out of this sort of episode, and these were people who were friends. There's no evidence of any malice towards him other than the fact of the death effectively and the inference that severe blows were struck, striking a severe blow to the stomach or blows to the stomach. They are quite a different order of magnitude. The slap might be regarded as an unlawful but not dangerous assault. The blows to the stomach, when someone is tied to a chair, we say, are of such a different order of magnitude that the way in which the direction was framed would cause the jury to say if they had come to that conclusion, which was open to them on the evidence, that the slaps were not intrinsically dangerous and the joint criminal enterprise was to do something that was not intrinsically dangerous. The subsequent direction that if the assault was dangerous you could convict, was in the circumstances of this case, not precise enough and caused the trial to miscarry." 109 In my opinion, these submissions ought not to be accepted. 110 First, it seems to me to be artificial to suggest that the whole of the evidence at trial, viewed in a sensible and practical way, could give rise to a reasonable inference that the appellant and Mr. Tekely were in agreement that they would jointly subdue and restrain Mr. Rolfi and then administer a few gentle slaps for whatever might have been their perceived purpose; but that Mr. Tekely had struck, as it were on a frolic of his own, the blows to Mr. Rolfi's stomach from which there resulted the ultimately fatal injuries. The implications of the medical evidence, virtually unchallenged as it was, pointed convincingly, in my opinion, to the existence of an unlawful common enterprise to restrain and then to beat Mr. Rolfi by striking to his body a series of blows with either the front or the back of the hand. 111 Secondly, it seems to me that the instructions given to the jury made it completely clear that the jury, in order properly to find the appellant guilty upon the basis of an unlawful common enterprise with Mr. Tekely, had to find not only that Mr. Tekely had struck the ultimately fatal blows, but that the present appellant had been there at that time "…… knowing Mr. Tekely was assaulting Mr. Rolfi and intentionally encouraging or assisting him to do so". Those directions seem to me to put fairly, clearly and in language which a lay jury might be expected to understand readily, the essence of the Crown case as it had been opened and thereafter consistently pursued at trial. 112 I would not uphold Ground 2. 113 In the result Mr. Nagle's conviction appeal should be, in my opinion, dismissed. Mr. Tekely's Sentence Application 114 It is trite that sentencing justly for a particular offence of manslaughter is always one of the most difficult of sentencing exercises. That is because, as Spigelman CJ pointed out in R v Forbes [2005] NSWCCA 377, the objective gravity of a particular instance of manslaughter "may vary …….. from a joke gone wrong to facts just short of murder". 115 In a case of the present character the correct starting point for an evaluation of the objective criminality of the offence is the simple proposition that a human life has been wrongly taken by the offender. An appropriate understanding of the significance of that fact, and a proper recognition of that significance in whatever ultimate sentence is passed, are imperative sentencing principles. 116 In my opinion, the objective criminality of the particular manslaughter which this Court is now called upon to consider, was of a very high order. The victim was a young man 20 years of age. He was hand-cuffed, and while so restrained, his abdomen was beaten with such force as resulted in the injuries, to which I have previously herein referred, to his mesentery and colon. That the events leading up to the victim's death appear to have been triggered initially by the victim's own behaviour resulting from what seems to have been a fit of some kind, can be accepted readily enough as going some way towards explaining why it was thought necessary to restrain him in some way and for some time; but it can neither explain nor excuse the way in which, nor the duration of the period throughout which, he was restrained; and it certainly cannot either explain or excuse the violence that was done to his person so as to cause, in particular, the ultimately fatal injuries to his mesentery and colon. 117 It is, of course, the case that there were subjective matters requiring proper consideration in conjunction with that level of objective culpability. Those subjective matters are set out at pages 8 and 9 of the remarks on sentence. It is not necessary to canvass their detail, since there is no present contention that the learned sentencing Judge did not correctly identify the present applicant's relevant subjective characteristics. 118 The learned primary Judge found special circumstances and adjusted accordingly the relationship of the non-parole period and balance of term. It was, in my opinion, undoubtedly open to her Honour to make such a finding of special circumstances; and no present complaint is made about the particular adjustment that was made thereupon by her Honour as between the non-parole period and the balance of term. 119 Two contentions are advanced in support of the present application. 120 First, it is contended that the sentence passed upon the applicant is manifestly excessive. The only comparable case put forward is that of Reg v Bolt (2001) 126 A Crim R 284. Of that case it is sufficient to say that it involved a Crown appeal against a sentence asserted to have been manifestly inadequate; and the matter was, in any event, one in which there had been a plea of guilty entailing an entitlement to a significant discount of sentence. In my opinion Bolt does not provide a useful point of comparison for the present applicant's case. 121 Leaving aside for the moment the question of delay, a discrete consideration as to which it will be necessary to say something presently, I am unpersuaded that the sentence passed upon the applicant was manifestly excessive. What was done to the late Mr. Rolfi was, by any reasonable reckoning, seriously wrong; and the learned primary Judge was, in my opinion, right to take the view that a comparatively severe sentence was called for. 122 Secondly, it is contended that her Honour did not sufficiently allow for the factor of delay. That there was such delay appears from the relevant chronology which is helpfully laid out as follows in the introductory paragraphs of the written submissions of the applicant: "20 Dec 2000 Antoni Rolfi dies 22 Dec 2000 Alan Tekely charged with manslaughter 11 July 2002 Alan Tekely discharged at committal 20 Dec 2002 Alan Tekely and Craig Nagle arrested and charged with murder and detain for advantage 17 Dec 2003 Both offenders committed for trial at Supreme Court 31 Aug 2004 Director of Public Prosecutions directs 'no further proceedings' and in lieu both offenders indicted for 'manslaughter and false imprisonment' 5 Oct 2004 Trial date vacated as no court or judge available 5 Nov 2004 Crown application to remit matter to District Court granted 21 Jan 2005 Trial date set – 2 May 2005 21 March 2005 Trial date vacated – Crown application. Listed for trial 31 October 2005 21 Oct 2005 Trial date vacated – Nagle application 6 March 2006 Trial commenced 27 March 2006 Verdicts entered 2 June 2006 Tekely sentenced" 123 The gist of the applicant's submission is put succinctly and as follows in paragraph 102 of the written submissions: "………. The chronology shows the path these proceedings had taken. However, her Honour only allowed delay for the applicant until 21 October 2005. My submission (sic) delay should have been to the day of sentence. The reason the trial date of 21 October, 2005 was because of an application of Nagle (sic). The applicant was not a part of that application. …………….. (H)e should not be punished for an application of a co-accused." 124 What her Honour actually said in the remarks on sentence on the topic of delay is: "As I earlier referred to there has been a delay of almost five and a half years in these matters being finalised. The Crown has provided a chronology which sets out the history. Most of the delay is not attributable to the offenders although I note that the penultimate trial date of 21 October 2005 was vacated at Mr. Nagle's request. The offenders are entitled to have the delay up to that point that is about five years taken into account on sentence and I have done so." 125 I take the present submission to be, essentially, that the learned sentencing Judge took into account a delay stretching from 22 December 2000 until 21 October 2005, a period of about 5 years; when her Honour ought fairly to have taken into account a delay spanning the period from 22 December 2000 until 6 March 2006, a period of about 5 years and 5 months. The short answer to that submission is, in my opinion, that the taking into account, in a correctly principled way, of a factor of delay between arrest and trial, does not entail something in the nature of a precise arithmetical exercise. It entails the bringing into the general mix of sentencing considerations the particular period of delay; and the weighting, in the particular sentencing exercise, of that factor as but one element in the instinctive synthesis that has to be made by the particular sentencing Judge of all the relevant facts and circumstances, both objective and subjective, of the particular case. 126 Approached in that fashion, I am of the opinion that, even were it correct to say that the Judge should have spoken of 5 years and 5 months rather than of 5 years, the practical consequences could not have entailed any adjustment, other than the merest tinkering adjustment, with the sentence as it stands. Conclusions and Orders 127 For the whole of the foregoing reasons, I am of the opinion that the Court should make the following orders: · In the appeal of Alan John Tekely: (1) that the appeal against conviction be dismissed; (2) that leave be granted to appeal against sentence; (3) that the appeal against sentence be dismissed · In the appeal of Craig Michael Nagle: (1) that the appeal against conviction be dismissed. 128 HOWIE J: I have received the considerable benefit of reading in draft the judgment of Sully J. I respectfully agree with what his Honour has written in relation to the appeal against conviction and sentence in respect of the appellant Tekely. However, I wish to address the appeal against conviction of the appellant Nagle. In order to do that I gratefully accept what Sully J has written as to the relevant evidence led in the Crown case against Mr Nagle and the issues that arose for the jury's deliberation. I should mention at the outset that I agree with his Honour's conclusion that the conviction was not unreasonable. 129 The first ground of appeal by the appellant Nagle complains that the trial judge in effect invited the jury to consider the record of interview of Mr Tekely when considering the case against Mr Nagle. Of course there was, as Sully J points out, no complaint by counsel about the now impugned statements by her Honour and so rule 4 of the Criminal Appeal Rules applies. In order to succeed on this ground of appeal the appellant must satisfy the Court that a miscarriage of justice may have occurred arising from the direction given by her Honour in this regard. 130 It is remarkable that, if the judge was conveying to the jury, even unconsciously, that they could use statements made by Mr Tekely to the police in his recorded interview in the Crown case against Mr Nagle, that counsel for Mr Nagle did not complain. It is, as Sully J points out, so fundamental to the proper conduct of a joint trial that the jury have it made clear that they cannot use statements made by one co-accused to police against another co-accused, that counsel could not have thought her Honour was making the mistake that is now attributed to her and yet sat silent even when her Honour invited counsel to comment on the summing up. 131 There is no explanation from trial counsel before the Court for failing to take the point. True it is that counsel might be so incompetent as to have overlooked such a grievous error made in a relatively short summing up but there is nothing otherwise in the conduct of the trial that indicates that this was a possibility. It can be accepted that there could have been no tactical advantage to the accused Nagle perceived by his counsel that might account for the omission to complain. But, as I pointed out in R v Moussa [2001] NSWCCA 427; 125 A Crim R 505 at [63], rule 4 is not overcome simply by showing that there was no tactical advantage for not taking the point at the trial. The real position is that where there is a tactical advantage discernable it would be difficult for the appellant to show that a miscarriage of justice arose from a failure to take the point. 132 In order to understand the criticism of the summing up and whether a miscarriage of justice might have occurred it is important, in my opinion, to go back into the trial and see how the records of interview were dealt with before the jury. In opening to the jury the prosecutor referred to the fact that the appellant Tekely had made an interview with police. He said to the jury: "He says in that interview things about Rozlyn Tekely [a co-accused]. He says things about Mr Craig Nagle but those matters are not evidence against those other two. You will appreciate that makes sense." 133 After referring to those parts of the interview upon which the Crown was relying, the prosecutor then turned to the interview given by the appellant Nagle. He said: "Mr Nagle also agreed to be interviewed by the police which was done on the same day as Mr Tekely, 22 December 2000 and again what Mr Nagle said in his interview will only be evidence against him and not against the other two accused." 134 At the end of the Crown's opening her Honour spoke to the jury as follows: Thank you Mr Crown. I want to go back to one thing the Crown said, ladies and gentlemen. You recall he talked about each of the accused's recorded interview with the police, and he said that in particular when he was dealing with Mr Alan Tekely, he said that was only evidence against him. Each recorded interview will be evidence in the case in the trial against that particular accused. It may be that the Crown relies on parts of it as evidence against the accused. It may be that defence counsel rely on parts of it as evidence in favour of the accused, and you will have to assess that when you see the evidence. But it seems that those interviews will be admitted before you and will become certainly the evidence in the trial. 135 This took place on 6 March 2006, the first day of the trial. On 15 March 2006 the records of interview of each of the co-accused were tendered. The Crown prosecutor said: "Your Honour, I tender in the case against Alan Tekely, an edited electronically recorded interview between police and Mr Alan Tekely at the Fairfield Police Station on 22 December 2000. There are four videotapes and they are marked Tekely A, tape 1 of 4, tape 2 of 4, tape 3 of 4 and tape 4 of 4. I tender those edited interviews. " Counsel for Mr Tekely said, " No objection." 136 Her Honour then said to the jury: "Members of the jury, understand from what the Crown Prosecutor said this is only evidence in the case of Mr Tekely, and that's why it was only [counsel for Tekely] who said there was no objection to it. This is the only evidence we have had so far and it's only tendered in respect of one of the accused; that is his interview" 137 There was then discussion about the tendering of transcripts of the interview. Her Honour then gave to the jury the conventional direction on transcripts at the end of which she said: "If you would like to write on it 'exhibit E' and also in big letters 'Alan Tekely' because it's only evidence in the case against Mr Tekely" 138 The playing of the tape took the rest of the day, 15 March. During the afternoon her Honour discussed with counsel certain variations between the transcript and what was said on the tape, during which she indicated that it was " a very attentive jury" and that they may have picked up the variations. 139 On 16 March 2006 the Crown tendered the appellant Nagle's interview. The prosecutor said: "Now I tender in the case of Craig Nagle the edited interview between police and Mr Nagle at the Fairfield Police Station on 22 December 2000………" The prosecutor also tendered a transcript. 140 Her Honour said to the jury: "These will comprise exhibit F. That is only evidence in the case involving the accused, Mr Nagle. Once again you will be provided with transcript. I will not repeat what I said, you obviously are well aware of the caution you have to exercise when using a transcript. You might like to write the letter 'F' or 'exhibit F' on your copy of the transcript, members of the jury……." The videotape was then played to the jury for the rest of the day. 141 The Crown then tendered the record of interview of Mrs Tekely again stating that it was tendered "in the case of Roslyn Tekely". Counsel for Mrs Tekely then indicated that he was going to hand up a set of corrections to the transcript. During the course of explaining to the jury what was happening, her Honour referred to "the last interview, that is in the case of Mrs Tekely". That video was played to the jury for the rest of the day. 142 On 20 March each of the three defence counsel separately indicated in front of the jury that they had prepared corrections in relation to the interview of the accused they represented and these were handed to the jury. 143 The point of this review of what happened in respect of the interviews is to indicate that it had been made clear to the jury on more than one occasion and throughout the trial that each of the interviews was only to be used in the case of the accused who made the interview. This was done by what the Crown said when opening the trial and what her Honour added after the opening. It also was reinforced when the prosecutor tendered each of the interviews stressing that they were only tendered against a particular accused. It was made even clearer by what her Honour said about Mr Tekely's counsel being the only person to indicate that he was not objecting to that interview, and then asking the jury to write Mr Tekely's name on the top of the transcript. Then each of defence counsel participated in front of the jury in tendering corrections to the transcript of the interview that had been made by his client. 144 At this stage in the trial, that is 20 March 2006, the jury could have had no doubt as to how they were to deal with each interview and that they could only use it against the accused who had made it in support of the Crown case against that accused. 145 In the Crown closing address the prosecutor, after dealing generally with the evidence, then turned to the case against each accused. In respect of the appellant Tekely the Crown referred to his record of interview but, as would be expected, said nothing about the interview made by either of the co-accused. Similarly when he addressed the case against the appellant Nagle he again referred to his interview but not that of the other co-accused. The Crown effectively finished addressing on 21 March. 146 On 22 March counsel for the appellant Tekely raised a concern with the Crown address in relation to what he said about Mr Nagle's interview in supporting the evidence of Mr Horvath. As a result the Crown readdressed the jury as follows: "Ladies and gentlemen, I just want to clarify something that I said yesterday. You recall I addressed you in relation to Mr Horvath being cross-examined about the handcuffs, placing them in the box and I also went on to say that in Mr Nagle's interview he virtually said the same thing, and I said that something like what Mr Nagle said supported what Mr Horvath said. Of course perhaps I should have again reminded you that the interview of Mr Nagle isn't evidence against Mr Tekely. So just to make it abundantly clear, that comment that I made to you is only relevant as far as Mr Nagle's case goes not Mr Tekely. Thank you……" 147 Each defence counsel then addressed, and as would be expected referred only to the interview involving his client. During his address counsel for Mr Nagle reminded the jury that the interview of Mr Nagle was only tendered in his case and that Mr Tekely's interview was tendered in his case and asked the jury to remember this fact. Later in his address after lunch, when submitting to the jury, that they would not find that his client was not there when Mr Tekely hit the deceased's stomach he asked the jury to "keep in mind Mr Tekely's electronically recorded interview is not evidence in Mr Nagle's case". 148 The balance of 22 March and a short period in the morning of 23 March were taken up with counsel submissions prior to the summing up. 149 It is plain that by the time the Judge commenced to sum up to the jury they had been directed, warned, and reminded by the Crown, defence counsel and the Judge repeatedly that the interview of one accused could not be used in the case against another accused. This was not a case where a direction was only given at the start of the trial some two weeks before the summing up. Rather the jury were directed about it at the time the records of interview were played to the jury over a number of days. The Judge asked the jury to write Mr Tekely's name on the transcript of his interview so they would remember that they could only use it in his case. They were reminded of this matter again during counsel's addresses, not by inference, but by direct application to specific parts of the evidence. The Crown reopened his address specifically to clarify the point that a submission he made based upon the appellant Nagle's interview did not apply to Mr Tekely. This was said the next morning after his address had finished the previous day. The appellant Nagle's counsel referred twice at different stages in his address to the fact that the jury in considering the case against Mr Nagle could not use the appellant Tekely's interview. 150 Then at page seven of the summing up the Judge gave a specific direction to the jury about the use to be made of the interviews in the terms set out in the judgment of Sully J saying: "I am sure that it is clear to you members of the jury that exhibit E, which is the interview with the accused Alan Tekely, can only be used by you when you are considering his case and his case only". 151 I am prepared to accept that, when consideration is given only to the passages in the summing up upon which the appellant Nagle relies and as set out in the judgment of Sully J, that, absent any other consideration than what her Honour said in the summing up, a concern might arise that the jury could have thought that it could use the interview of Tekely in support of the Crown case against Nagle. But when consideration is given to the whole of the trial, the directions given, the way in which counsel and the Judge dealt with the interviews when they were tendered, the discrete references to this topic during addresses and what the Judge said at the opening of the summing up, I am far from convinced that the jury would have simply brushed all that to one side, and taken into account the interview of Mr Tekely when considering the case against Mr Nagle. 152 It is clear beyond argument in my view that counsel did not complain or ask for further directions because they had in their minds the way the topic had been dealt with over the whole of the trial and it never occurred to them that the jury would treat the directions about which complaint is now made in the manner in which counsel for the appellant contends. It was unfortunate that there can be any question arising about whether the jury might have misused the evidence of what each co-accused told the police but I do not believe that it is a realistic possibility. I am not satisfied that there may have been a miscarriage of justice. I would apply rule 4 of the Criminal Appeal Rules and dismiss ground 1 of the appeal by the appellant against his appeal against conviction. 153 For the reasons given by Sully J I would reject grounds 2 and 3. Therefore, I agree with the orders proposed by Sully J. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.