R v Hajistassi

Case [2010] SASC 111

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v HAJISTASSI

[2010] SASC 111

Judgment of The Court of Criminal Appeal

(The Honourable Justice White, The Honourable Justice David and The Honourable Justice Kourakis)

27 April 2010

CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION - REVIEW OF EVIDENCE

CRIMINAL LAW - EVIDENCE - CONFESSIONS AND ADMISSIONS - STATEMENTS - VOLUNTARY STATEMENTS - FUNCTIONS OF JUDGE AND JURY - DIRECTIONS TO JURY

APPEAL AND NEW TRIAL - NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS - PARTICULAR GROUNDS - JURY'S MISCONDUCT, BIAS OR FAILURE TO APPLY MINDS TO REAL ISSUES

CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - DEFENCE MATTERS - PROVOCATION - DIRECTIONS TO JURY

CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE - APPEAL DISMISSED

Appeal against conviction for murder - appellant killed the deceased by inflicting multiple stab wounds - issue of self-defence was raised at trial - evidence of the deceased's violent predisposition was adduced - whether the Judge's directions were sufficient to alert the jury as to the way that they could use this evidence in regard to the issue of self-defence - discussion of the principles concerning the admissibility of evidence regarding a victim's violent predispostion.

Whether the directions adequately alerted the jury that the evidence concerning self-defence should also be considered in relation to the accused's intention .

Held:  the ways in which the jury could use the evidence regarding the deceased's violent predisposition were clear from the closing submissions of counsel and from the Judge's directions.

Evidence was adduced at trial of telephone calls containing both inculpatory and exculpatory statements as direct evidence from the accused- whether the jury should have been further directed that the exculpatory statements amounted to evidence of their truth.

Held:  not necessary for the Judge to give a further direction as to the proper evidentiary use of the exculpatory statements.

Whether several matters regarding the composition and conduct of the jury accumulated to cause a miscarriage of justice - one juror was excused from service because it was communicated to the Court that he felt unable to cope with the task - another juror reported that she found some of the evidence distressing and a third asked for an advance warning of any graphic or potentially disturbing evidence - no evidence that the jury were distracted from their task by the reactions of the affected jurors to the evidence.

Held:  the Judge did not err by failing to declare a mistrial when excusing the juror - the reactions of the two other jurors did not indicate that a miscarriage of justice had occurred.

Whether the Judge erred in failing to leave the defence of provocation to the jury - provocation was not a defence raised at trial.

Held:  the evidence upon which the appellant relies was insufficient to produce, in the minds of a reasonable jury, a…

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R v Hajistassi [2010] SASC 111
Case
[2010] SASC 111
Decision Date

CaseChat Overview and Summary

In the matter of R v Hajistassi, the appellant was convicted of manslaughter in the Supreme Court of South Australia. The dispute arose from the appellant's claim that he acted in self-defence against his father, who was killed during an altercation. The court was required to determine whether the trial judge had adequately directed the jury on the principles of provocation and self-defence, and whether the evidence supported a conviction for manslaughter.

The primary legal issues before the court were whether the trial judge had properly directed the jury on the legal principles relevant to provocation and self-defence, and whether the jury's verdict was unreasonable or unsustainable in light of the evidence. Specifically, the court needed to assess whether the evidence supported a finding that the appellant had lost self-control due to provocation and whether an ordinary person in the appellant's position would have acted similarly.

The court found that the trial judge had not erred in directing the jury on the principles of provocation and self-defence. The judge had clearly instructed the jury to consider the evidence objectively and to disregard any personal biases or emotions. The court also concluded that the jury's verdict was supported by the evidence. The deceased's history of violence towards the appellant's mother was not sufficient to establish that the appellant had lost self-control due to provocation. Furthermore, an ordinary person in the appellant's position would not have reacted with lethal force in the circumstances presented.

The appeal was dismissed, and the conviction for manslaughter was upheld. The court found that the evidence did not support a finding of provocation and that the jury's verdict was reasonable in light of the evidence.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The principle of public policy which precludes the prosecution from adducing evidence of the disposition or propensity of an accused person to act in the way alleged has no application in relation to a person other than the accused.[7][7] Ibid.The Evidence Concerning Previous Conduct of the Deceased Ms Stone described various incidents of violence towards her by the deceased during the period in which they shared the house at Welland. On one occasion she was punched in the face by the deceased and lost consciousness. On regaining consciousness, she called the police and the deceased was arrested. The following day he made the apparent attempt at suicide to which we referred earlier. After his recovery, the deceased stayed with his brother, but after about one week moved back to share the house at Frederick Street, Welland with Ms Stone. Their relationship was peaceful for a period, but Ms Stone described a later evening when, in the presence of his son, the deceased kicked her. Again the police were called. Ms Stone subsequently stayed away from the house for a short period. Ms Stone said that the deceased would “fly off the handle” for no apparent reason, although sometimes this was apparently in frustration when something would go wrong with work he was carrying out in his shed. Ms Stone referred in a general way to a number of occasions when the deceased had been verbally abusive towards her. This behaviour was apparently associated with the deceased’s consumption of alcohol. She said that she had spoken to him about his drinking and had warned him that she would not stay in the house if he continued to consume alcohol. The deceased did limit his alcohol consumption for a period. However, he had resumed drinking for a month or so prior to 26 June 2008. Ms Stone had told him that she was not prepared to continue living in the house if he continued drinking. Ms Stone thought that the deceased was affected by alcohol when he came home at about 10.30 pm on 26 June 2008. She described him coming into the lounge room and squeezing her shoulders in a way which hurt. She told him that he was hurting her, and asked him to stop, which he did. There was no evidence that the appellant had any knowledge of the deceased’s violence towards his mother, or of his violent outbursts prior to the evening of 26 June 2008. The evidence suggested that the contrary was the case. Ms Stone said that prior to that evening, she had not told the appellant of the deceased’s assaults upon her. In one of the recorded telephone conversations from the Remand Centre the appellant confirmed that his mother had not told him of the deceased’s violence towards her and continued: “I’ve never, ever seen that side of him. I actually thought he was a good bloke”. Evidence was also led from the deceased’s brother. He had been informed of the incident in which the deceased had punched Ms Stone. He said, however, that he was not aware of any other incidents of violence by the deceased towards Ms Stone and said that the deceased was not generally short-tempered. Consideration of the Submission Concerning Absence of Directions

Decision

Reasons for decision

This ground of appeal does not succeed.Conclusion For the reasons given above, we would dismiss the appeal. KOURAKIS J: As the substantive law of manslaughter presently stands,[27] an offence which would otherwise be murder is manslaughter if the prosecution fails to disprove the following elements beyond reasonable doubt:(a)Provocative conduct of the deceased or his proxy which, assessed from the perspective of the accused, has the capacity to cause an ordinary person to lose self control to such an extent that he kills; and(b)A resulting sudden and temporary loss of self control to the extent that the accused kills before he has had the opportunity to regain his composure because he is not the master of his mind.[27] The Queen v R (1981) 28 SASR 321 at 321-2 per King CJ; R v Cooke (1985) 39 SASR 225 at 235 per King CJ; R v Fricker (1986) 42 SASR 436 at 445 per King CJ; R v Gardener (1989) 42 A Crim R 279; R v Singh (2003) 86 SASR 473 at 493 per Mullighan J; Van Den Hoek v The Queen (1986) 161 CLR 158 at 161 per Gibbs CJ, Wilson, Brennan and Deane JJ; R v Earley (unreported, Supreme Court of South Australia, Court of Criminal Appeal (King CJ, Millhouse and Olsson JJ), 6 April 1990); Masciantonio v The Queen (1995) 183 CLR 58 at 67 per Brennan, Deane, Dawson and Gaurdron JJ; Stingel v The Queen (1990) 171 CLR 312 at 331 per Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ. It is the obligation of the trial Judge to direct the jury on all legal questions which are put in issue at trial and are raised by the evidence.[28] In the context of provocation manslaughter, it is often said that there must be evidentiary material which is capable of constituting manslaughter.[29] To put the threshold for leaving manslaughter by reference to an evidentiary onus is a convenient shorthand, but care must be taken not to slide from an evidentiary onus to a persuasive one. In Stingel v The Queen[30] and Masciantonio v The Queen,[31] the High Court warned that the threshold test is more accurately stated as “whether, on the version of events most favourable to the accused which is suggested by material in the evidence, a jury acting reasonably might fail to be satisfied beyond reasonable doubt that the killing was unprovoked in the relevant sense”.[32] [28] Pemble v The Queen (1971) 124 CLR 107 at 118 per Barwick J. See also CTM v The Queen (2008) 236 CLR 440 at 495-6 [192] per Hayne J.[29] Stingel v The Queen (1990) 171 CLR 312 at 334; Masciantonio v The Queen (1995) 183 CLR 58 at 67.[30] (1990) 171 CLR 312.[31] (1995) 183 CLR 58.[32] Stingel v The Queen (1990) 171 CLR 312 at 334; Masciantonio v R (1995) 183 CLR 58 at 67-8. See also Van Den Hoek v The Queen (1986) 161 CLR 158 at 162; R v Earley (unreported, Supreme Court of South Australia, Court of Criminal Appeal (King CJ, Millhouse and Olsson JJ), 6 April 1990). I have had the benefit of reading the draft judgment of White and David JJ. For the reasons given by their Honours, I agree that on the evidence the jury could not have failed to have been satisfied that the appellant was in control when he killed his victim. I also agree with their Honours in concluding that the jury must have been satisfied that an ordinary person in the proven circumstances would not have lost his self control such that he would decide to kill or cause serious harm. However, I provide my own reasons for coming to this latter conclusion below.Provocation – the historical and contemporary context

Ratio Decidendi

Legal Principle Established

Evidence was also led from the deceased’s brother. He had been informed of the incident in which the deceased had punched Ms Stone. He said, however, that he was not aware of any other incidents of violence by the deceased towards Ms Stone and said that the deceased was not generally short-tempered. Consideration of the Submission Concerning Absence of Directions The appellant submitted that not only had the Judge not directed the jury as to the proper use which could be made of Ms Stone’s evidence concerning the appellant’s violence towards her and his violent outbursts more generally, she had effectively suggested to the jury that this evidence should not colour or cloud their consideration of the issues in the trial. In this respect, the appellant referred to that part of the summing-up in which the Judge directed the jury to consider the evidence objectively and dispassionately, putting aside all emotions such as prejudice or sympathy. In the course of giving this direction, the Judge said:Ladies and gentlemen, in the course of this trial [Ms Stone] gave evidence about some problems she had with [the deceased] which she suggested mainly related to [the deceased’s] drinking. She also described [the deceased] as having been violent to her in the past. Ladies and gentlemen, I mention these matters at this point in the discussion because, depending on your view of the evidence, it might be the case that you disapprove of some aspects of the behaviour of [the deceased]. On the other hand, you might disapprove of some aspects of the behaviour of the accused. It might be the case that you do not care for some of the language used by the accused in the telephone calls from the Adelaide Remand Centre. The Judge then went on to remind the jury that a criminal court is not a court of morals and that they were not to allow their consideration of the issues in the case to be clouded or influenced by any disapproval they might have of the conduct of the deceased on other occasions or of the accused, or for that matter, of any of the other witnesses from whom they had heard. The appellant submitted that an express direction should have been given to the jury to the effect that it could take the evidence concerning the deceased’s history into account when considering who was the instigator of the assault. The appellant did not refer to any authority discussing the particular directions which should be given in relation to self-defence when the victim of the assault has a proven record or history of violence. Instead he relied on statements of general principle to the effect that juries should be assisted in applying the relevant legal principles to the circumstances of the particular case. Those principles do not require a judge to traverse every item of evidence in the summing-up. The extent to which it is necessary to do so depends upon a number of matters including the issues arising in the case, the importance of the evidence to the jury’s consideration of those issues, and the extent to which that importance is self-evident or has been made apparent to the jury during the course of the trial.