R v Bednikov No. Sccrm-97-328 Judgment No. S6697

[1998] SASC 6697

R v BEDNIKOV

Court of Criminal Appeal:  Prior, Olsson, Williams JJ
Prior J

This is an appeal against convictions for manslaughter and murder returned at a retrial of the appellant with respect to the killing of two people in the City of Adelaide on 10 February 1996.

The appellant was first charged with two counts of murder.  A jury returned verdicts of guilty of manslaughter and murder.  Those convictions were set aside by this Court[1].  At the retrial the learned trial judge informed the jury that the appellant had been previously been convicted of manslaughter and murder.  In this appeal it is complained that the trial judge erred in informing the jury of that.  It is also complained that the trial judge erred in his directions to the jury as to the use and limitations of the previous acquittal of murder on the first count then before the second jury.

[1]      R v Bednikov (1997) 193 LSJS 254

At the commencement of the second trial the prosecutor told the jury about the first trial and the appeal against convictions to the Court of Criminal Appeal.  He told them that the convictions were set aside by reason of a misdirection to the jury by the trial judge relating to a point of law.  He also told the jury that it must accept the fact that the first jury found the accused not guilty of murder on one count and not question that first jury’s decision to acquit of murder.  He told the jury that a well established principle of the law was that a verdict of acquittal once given was binding and that an accused must be given the full benefit of that acquittal.  The prosecutor also said that the jury was not to allow itself to be influenced by the fact that the first jury found the accused guilty on the charges that were before them.  He emphasised that it was for the jury to bring an impartial mind to bear on the issues having regard to the evidence to be presented at that second trial, uninfluenced by the earlier verdicts and uninfluenced by any media coverage that any juror may have seen or read.

At the end of the first day, the trial judge told the jury to disregard anything they may have heard about the case and to consider their verdicts on the evidence led at the trial and nothing else.  He then said:

“... you have heard about the previous trial and you have heard about certain verdicts that were given by a previous jury.  I have to direct you that you are not to speculate in any way about those verdicts.  It is quite irrelevant for your purposes that a previous jury found the accused guilty of manslaughter in respect of one count and murder in respect of another.  You have heard that there was an appeal - there were apparently some misdirections to the jury - so those verdicts of guilty in relation to those matters mean absolutely nothing.  They must not affect your deliberations in any way at all.  We come along to this trial with a clean sheet as far as the evidence is concerned and as far as any verdicts which might be given at the trial.

It is of some significance, as Mr Millsteed pointed out, that the accused was found not guilty of one of the counts of murder that he was originally charged with, and I have to give you some directions in relation to the significance of that in due course.  He made mention of it, and I think he said that the fact that a person is found not guilty of a particular offence stays forever, so to speak.  So, we must proceed on that basis; that the accused was not guilty of murder in respect of that matter, but, as far as the guilty verdicts are concerned, they must not affect your deliberations in any respect.”

Early in his summing up, the trial judge dealt with the topic again.  He said:

“You are aware that there was a previous trial in this matter.  I ask you to remember the warning I gave you earlier in the trial that you are to decide this matter on the evidence you have heard in this case, and you are not to attach any significance to the verdicts of guilty of manslaughter and guilty of murder from those proceedings.  However, the result from those proceedings, in part, is that the accused was found not guilty of murder on the count relating to Mr Slusarczyk and you must accept that verdict in the sense that you could not say to yourselves ‘Well, we think it was murder’ and then allow that view to influence you in relation to your deliberations on either the first count of manslaughter, or the second count of murder as they are presently charged in this case.

You must not proceed on any basis which would involve you assuming that all the elements of murder in relation to Mr Slusarczyk could be proved, and that there were no defences to a charge of murder.  Obviously the previous jury found either the elements of intention were not established, or that a defence such as provocation, or self-defence reducing the charge to manslaughter was available.  How they decided the matter in the sense of what path they took to reach that verdict we cannot say, and so I cannot be any more specific than I have been.  But you cannot form, or accept a view of the facts which is inconsistent with the previous finding that the accused’s actions in relation to Adrian did not amount to murder, and that applies to whichever of the two counts presently charged you have under consideration.

I cannot follow Mr Tilmouth’s argument expressed to you just a while ago that this means that if there was a murderous intent, as he described it, it can only have been formed in a split second between the two incidents.  We do not know, as I have said, how the first jury excluded murder, but they could have excluded it even if they found that there was an intention to cause death, or grievous bodily harm.  As I have said, they could have found that there was provocation, or limited self-defence.  You cannot read as much into the previous verdict as Mr Tilmouth would suggest.

But I repeat my warning:  You must proceed on the basis that there was an acquittal in respect of murder, and you cannot now proceed on the basis that there was an offence of murder there and allow that to influence your verdicts in relation to either of these counts in any way.

You were advised, and you may have known it already, that there has been some media publicity about this case, not during the present case - there tends not to be too much publicity about a re-trial - but there was undoubtedly publicity in relation to the first trial.  I ask you to ignore anything that you have read in the media about this matter.  It is a matter of plain commonsense that you judge this matter upon the evidence in the case.  I might say that no-one is better placed than you to decide this case, because you have been here every day, you have heard the evidence and you have heard comments on it.  Newspaper reporters, or media reporters generally come into court for a short time, grab a few snippets and then go out and print, or publicise, broadcast whatever they glean in that short time.  Jurors know much more about the case than that and it is safe to ignore any media publicity.”

At the outset of the trial, counsel for the appellant had expressed his objection to the jury being informed about the conviction for murder.  It was put that if the jury were told of that conviction it might give some false comfort, as it were, if the second jury were thinking along the same lines.  It was also put that if the second jury were aware of the murder conviction that may, psychologically, have an influence upon the jury’s deliberations that could not be predicted.  In answer to this, the prosecutor submitted that it was really impossible to talk about the acquittal on one charge of murder without reference to the conviction for murder on the second.  The trial judge asked what damage would be done if reference to the second conviction were left out.  To this, the prosecutor replied that publicity in the past was a factor.  The trial judge expressed the view that previous publicity could well mean that a juror might know that the appellant was previously convicted of murder.  That would require a direction to disregard anything that happened in relation to the first trial.

By the first ground of appeal it is complained that the trial judge erred in informing the jury of the fact that the appellant had previously been convicted of manslaughter on the first count and murder on the second.  The submission was that the jury could and should have been told of the verdict in the previous trial on the first count without reference to the verdict of guilty of murder on the second.  It was put that the verdict of guilty of murder was not an admissible fact on the second trial.  Absent consent by the accused, it should not have been put before the jury.  It was submitted that express directions to exclude anything heard outside the courtroom would have ensured a fair trial[2].

[2]      Murphy v R (1989) 167 CLR 94 at 99

I think the submissions must fail.  The two killings occurred on the same occasion within a few seconds of each other.  It would have been totally inappropriate to have told the jury nothing about the second verdict.  It would have substituted speculation or the danger of speculation for the reality and truth of circumstances so clearly put to the jury by the prosecutor and the trial judge.  A mere direction not to take into account anything outside the trial was not seen as sufficient by the trial judge.  He had to give directions designed to counteract any prejudice which the accused might suffer from the proper disclosures about the first trial.  No unfairness resulted from the directions the trial judge gave in the discharge of his responsibilities[3].

[3]      See Jago v District Court (NSW) (1989) 168 CLR 23 at 47

In the second ground of appeal, it is complained that the trial judge erred in directing the jury that it was unnecessary for them to proceed from the basis that there was no murderous intent in relation to the first count when considering their verdict on the second.  It was said that the trial judge ought to have directed the jury that in order to convict on the second count they would necessarily have to find an intent to kill was formed without provocation or in self-defence after the shooting in count one.  It is not correct to say that the trial judge directed the jury that it was unnecessary for the jury to proceed from the basis alleged.  The direction suggested was not appropriate either given the circumstances of the second trial.   To have done so would also have been contrary to the finding of the majority of this Court in the first appeal[4] .

[4]      See R v Bednikov (1997) 193 LSJS 254 at 261 and 276

After the passage quoted from the summing-up, the trial judge told the jury to consider the two charges individually and then said that he would first explain to the jury the elements of the second count in the information, that alleging murder of Mr Noga.  His Honour said that he found it convenient to deal with the second count first because there were more directions to give the jury in relation to murder.  He said that he would then consider the elements relating to manslaughter as it applied to the particular case then before the jury.  The directions then given with respect to murder did not include any direction of the kind referred to in this second ground of appeal.   As for the manslaughter charge, the directions given were confined to criminal negligence.

In my view, the trial judge correctly told the jury that the verdict of manslaughter was not to be explained upon the basis that the jury was not satisfied as to a murderous intent with respect to the first count given that such an intent may have been established but provocation or limited self-defence made out, or not excluded as a reasonable possibility.  That direction did not deny the appellant the full benefit of his acquittal of murder at the first trial.  A direction of the kind sought with respect to the murder then charged was not required to give the full benefit of the acquittal of murder at the first trial.  Nothing said or unsaid by the trial judge was inconsistent with the principles discussed by the High Court in R v Storey[5].  No direction of the judge involved using the evidence “in any wise to reconsider the guilt of the accused of (the charge of murder in the first count in the first trial) or to question or discount the effect of the acquittal” of murder[6].

[5] (1978) 140 CLR 364

[6]      R v Storey (1978) 140 CLR 364 at 372

It was also said that the trial judge erred in structuring his summing-up so as to deal with the second charge of murder before the first of manslaughter.  The submission was that, by not placing or repeating the directions required as

a consequence of the previous acquittal of murder on the first charge, when he came to deal with that charge the trial judge placed insufficient emphasis upon the directions given.  I cannot agree that any error resulted from the course that the trial judge took. In the circumstances of the second trial, that course was proper for the reasons explained to the jury and against the fact that the prosecution chose to make out its case on the charge of manslaughter by relying upon the principles of criminal negligence.  The case raised by the appellant in the second trial with respect to this killing was of firing deliberately with no intention to cause injury.  No reference to murderous intent occurred with respect to that count.  No direction on that count deprived the appellant of the full benefit of the acquittal on the charge of murder in the first count at the first trial.

I find nothing in Storey to justify the demand that the trial judge had to direct the jury that to convict of murder on the second count at the second trial a murderous intent had to be established as arising after the alleged manslaughter of his first victim.  The issues properly put to the jury with respect to the murder charge included the question whether the appellant’s act was deliberate.  The appellant’s evidence was that he pulled the trigger instinctively.  He said it was not a deliberate act.  Thus, the issue on the murder charge was very different from that identified with respect to the manslaughter count.  The prosecutor had to exclude, as a reasonable possibility, that there was an accidental discharge of the firearm in the course of a struggle.  There was no denial of the full benefit of the acquittal of murder in any of the directions given.  The issues raised on the second trial did not call for the direction sought.

The summing-up put all matters clearly and fairly.  The facts were well summarised as were the cases for the prosecution and the defence on each count.

The appeal should be dismissed.

Olsson J

I agree.

Williams J

For the reasons given by Prior J I agree that the appeal should be dismissed.