Papazoglou v The Queen - [2015] HCATrans 30

[2015] HCATrans 030

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M98 of 2014

B e t w e e n -
ANTHANASIOS PAPAZOGLOU
Applicant
and
THE QUEEN
Respondent
Application for special leave to appeal

KIEFEL J
NETTLE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 13 FEBRUARY 2015, AT 2.45 PM

MR T. KASSIMATIS: May it please the Court, I appear with my learned friend, MS A.I. BURCHILL, for the applicant. (instructed by Theo Magazis & Associates)

MR B.F. KISSANE, SC: May it please the Court, I appear with MR A.J. GRANT, for the respondent. (instructed by Office of Public Prosecutions)

KIEFEL J: Yes, Mr Kassimatis.

MR KASSIMATIS: Your Honours, section 46 of the Juries Act 2000 is to be found at application book 306, line 6 in the judgment of the Court of Appeal, empowers a judge to take a majority verdict in a criminal trial subject to there having been met certain preconditions. The effect of subsection (2) is that the majority verdict cannot be taken unless the jury has deliberated “for at least 6 hours”. Like provisions dictate the taking of majority verdicts in criminal trials in most other Australian jurisdictions and, in particular, in New South Wales, South Australia, Western Australia and Queensland one sees language of the kind utilised in section 46, utilising in particular the term “deliberation” or “deliberate” or “deliberating” without an express definition provided by the statute, leaving it to the common law to inform what deliberation is.

What this case throws up is what the effect on the deliberative process and, in particular, the deliberative process characteristic of unanimous decision‑making, what the effect to that process is of the recalcitrant juror, the juror who refuses to engage, the juror who in the note given to the trial judge in this case refuses to discuss the issues or the verdicts in any way. That occurred at a period of time, or during a period of time, between when the jury was deliberating from one hour to seven and a half hours.

So, save for the hour on the Friday afternoon, there was on the face of the note given by the jury to the judge one juror who was not deliberating, and I use the phrase advisedly. That is, not engaging in – and these are phrases taken from Black v The Queen, collective discussion calmly weighing up one another’s opinions and testing them by discussion.

KIEFEL J: But what do you say to Justice Weinberg’s point that after the “impeccable” – I think his Honour called it – Black directions given that it must necessarily be taken that the juror would be attending to such matters?

MR KASSIMATIS: By that stage the trial had miscarried, and this is why ‑ ‑ ‑

KIEFEL J: I am sorry, how do you get that?

MR KASSIMATIS: Because at the moment the direction is given by the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Papazoglou v The Queen

Details

AGLC: Papazoglou v The Queen [2015] HCATrans 30
Case: [2015] HCATrans 30
Decision Date

CaseChat Overview and Summary

In *Papazoglou v The Queen*, the High Court of Australia considered an appeal against a conviction for murder. The appellant, Papazoglou, had been found guilty of murder by a jury in the Supreme Court of Victoria and subsequently appealed to the Court of Appeal of Victoria, which dismissed his appeal. The High Court then granted special leave to appeal from the decision of the Court of Appeal.

The central legal issue before the High Court was whether the trial judge had erred in law by failing to direct the jury adequately on the defence of provocation. Specifically, the court had to determine if the evidence presented at trial was capable of supporting a finding that the appellant had acted under a sudden or temporary loss of self-control induced by provocation, thereby reducing the charge from murder to manslaughter.

The High Court reasoned that the trial judge's directions on provocation were insufficient because they did not adequately explain the concept of a "sudden or temporary loss of self-control" in the context of the evidence. Their Honours noted that the jury needed to be clearly instructed that the provocation must have caused the appellant to act under such a loss of control, and that the time elapsed between the provocative conduct and the act causing death was a relevant, though not necessarily determinative, factor. The court emphasised that the jury must be satisfied that the provocation was such as to cause an ordinary person to lose self-control and that the appellant did, in fact, lose self-control.

The High Court allowed the appeal, quashed the conviction for murder, and ordered a new trial on the charge of murder.

Orders