R v Fischetti & Caggiano

The Director of Public Prosecutions (ACT) appealed to the Court of Appeal of the Australian Capital Territory against orders made by a judge of the Supreme Court of the Australian Capital Territory. These orders discharged the jury from returning a verdict and recorded a verdict of acquittal in favour of the respondents, Fischetti and Caggiano. The respondents had been indicted for conspiracy to commit an offence against a law of the Territory, specifically the theft of approximately $150,000 from St George Bank Ltd. The trial judge had found that there was no material capable of supporting the allegation as presented, concluding that the prosecution on the indictment as framed could not possibly succeed.

The central legal issues before the Court of Appeal were whether the trial judge had the power to direct the entry of a verdict of acquittal under section 287 of the Crimes Act 1900 (ACT) when no jury had been empanelled for the trial, and whether the proceedings constituted a hearing "on the merits" despite the absence of a jury. The prosecution contended that the lack of jury empanelment rendered the acquittal invalid, arguing that a jury must be sworn for a judge to validly make such an order.

The Court of Appeal reasoned that a hearing "on the merits" occurs whether an acquittal is based on a finding of law or fact, and that the absence of factual findings did not negate this. The Court affirmed that a jury may be directed to acquit even based on the Crown's opening statement if the case, taken at its highest, could not legally justify a conviction. However, the Court found that the trial judge's power to direct an acquittal under section 287 of the Crimes Act 1900 (ACT) was contingent on the trial process having reached a stage where a jury could be directed to return a verdict. As no jury had been empanelled or sworn, the trial had not commenced in a manner that would permit the judge to exercise the power granted by section 287.

Consequently, the Court of Appeal ordered that the orders of acquittal made by the trial judge be set aside. The proceedings were remitted to the trial judge to proceed according to law, with the understanding that the issue of whether the indictment could be sustained would need to be determined in a manner consistent with the Court of Appeal's reasons, which implied the necessity of a properly empanelled jury for a valid acquittal by direction.