Director of Public Prosecutions v Micevic

[2005] VSC 379

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1533 of 2004

DIRECTOR OF PUBLIC PROSECUTIONS

v

ZDRADKO MICEVIC

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JUDGE:	CUMMINS J
WHERE HELD:	Melbourne
DATE OF HEARING:	11 September 2005
DATE OF RULING:	11 September 2005
CASE MAY BE CITED AS:	DPP v Micevic:   Ruling No. 7
MEDIUM NEUTRAL CITATION:	[2005] VSC 379

RULING NO. 7

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CRIMINAL LAW AND PROCEDURE – Jury trial – Manslaughter – Sitting on Sunday – No inefficacy at common law – No holy days at common law in Australia – Section 7 Supreme Court Act 1986.

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APPEARANCES:	Counsel	Solicitors
For the Director	Mr R. Elston SC Mr J. Baum	Solicitor for Office of Public Prosecutions
For the Accused	Mr T. Forrest QC Mr D. Sheales	Galbally Rolfe

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HIS HONOUR:

1. Today is a Sunday and we are in court in a criminal trial with the jury deliberating in the jury room.  The jury retired to consider its verdict on the charge before it of manslaughter at 2.45 p.m. on Thursday last.  It deliberated throughout Thursday afternoon, deliberated for eight hours on Friday and again for eight hours yesterday, being Saturday.  Mid-afternoon yesterday, the jury through my tipstaff and head keeper, communicated to the court that it wished to sit and continue deliberating today, which request I granted. 

1. The accused, Zdradko Micevic, then 21 years of age and a security employee engaged at the Beaconsfield Hotel, St Kilda, is charged with the manslaughter of David Hookes on 19 January 2004.  Mr Hookes was the Victorian Cricket Coach and also a media presenter.  The trial has taken three weeks to date.  Forty-five witnesses, including the accused, have given evidence before the jury.

1. Early this morning by email, learned senior counsel for the prosecution raised the question whether it is permissible to take a verdict on Sunday.  I have now heard submissions.  In the 2002 Victorian Trial Manual at p.1123 it is asserted that:

“As the taking of a verdict is a public judicial act it is extremely doubtful whether a verdict can be taken on a dies non, such as a Sunday.”

Such a statement in a 2002 text book in Australia I must say is surprising;  but more relevantly, I consider is wholly erroneous. 

1. The authority referred to in the Victorian Trial Manual is Winsor v R[1],  and an article “Never on Sunday”.[2]  In Winsor there were obiter dicta doubting whether a verdict could be validly received on a Sunday, by Cockburn CJ at 308 (referring to old authority of Lord Coke and Comans), Blackburn J at 317 and Mellor J at 322. The attractively entitled article Never on Sunday - although we are – is by S. Spencer, Q.C., Recorder.  There is other English authority, referred to conveniently in In re “N” (Infants)[3].  Stamp J there stated at 523:

“The authorities show, beyond doubt, that at common law, Sunday, like other holy days, was a dies non juridicus.”

Stamp J in 1967 cited authority from the years 1611 and 1764.

[1](1866) L.R. 1 QB 289 . When the question of the discharge before verdict of the jury was taken by writ of error to the Court of Exchequer Chamber, the matter of dies non juridicus was not referred to in argument or judgment:  Winsor v R (1866) L.R. 1 QB 390.

[2](1995) Crim.L.R. 625.

[3](1967) 1 Ch.D. 512.

1. In my view the cited English authorities do not constitute the common law in Victoria.  This is a secular judicial system in a secular State.  There is no established religion in Victoria or in Australia.  The law does not recognise, nor does this Court, holy days, whether Sunday, Saturday or Friday;  although religions do.  The observance of religion is a matter for the individual, not for the State or the law.  At common law in Australia there are no "holy" days so called, nor does such a day constitute a dies non juridicus.  In Australia each day is a civil day in a secular system of law in a secular State.  The English common law cases spoke of a society with an established religion, in centuries long gone.  They do not state the common law in Australia  in the 21st century.

1. Further, and in any event, the matter in Victoria is governed by statute. Section 7 Supreme Court Act 1986 provides:

“Subject to the Rules, the Court may sit and act at any time and place.”

The section means what it says.  There is nothing in the Chapter I of the Rules - Supreme Court (General Civil Procedure) Rules 1996 - contrary to the proposition that the Court can sit on any day; and there is nothing in Chapter VI – Supreme Court (Criminal Procedure) Rules 1998 – either.

1. Further, there is no Victorian legislation making Sunday or any other day a holy day or a dies non juridicus, either generally or for purposes of receiving a verdict.  There is nothing in Part III Division I Sub-division 19 Crimes Act 1958 (Verdicts) or in Part 6 Juries Act 2000 (Jury Trials). There was a brief appearance in Victorian legislation of The Sunday Observance Act (1677) 29 Charles II c.VII, s.6.  It was inserted in the Supreme Court Act 1958 by s.7 Imperial Law Re-enactment Act 1980.  That Act inserted s.62(1A), which had its genesis in The Sunday Observance Act of Charles II.  Even that, however, rendered void only service of process on a Sunday.  In any event, the Supreme Court Act 1958 was repealed in whole by s.140(1) of the Supreme Court Act 1986; which brings us to the present section 7, which provides that the Court may sit and act at any time and place.

1. That is how we come to be here in Melbourne on a Sunday, competently and validly, according both to statute and common law.

[ADDENDUM:        A verdict of not guilty of manslaughter was returned by the jury at

5.45 pm on Monday 12 September 2005].