Supreme Court of South Australia
(Court of Appeal: Criminal)
R v PACITTI
[2022] SASCA 108
Judgment of the Court of Appeal
(The Honourable President Livesey, the Honourable Justice Doyle and the Honourable Justice David)
21 October 2022
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST ACQUITTAL
CRIMINAL LAW - PROCEDURE - TRIAL HAD BEFORE JUDGE WITHOUT JURY - ELECTION
APPEAL AND NEW TRIAL - NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS - PARTICULAR GROUNDS - IRREGULARITY AS REGARDS PROCEDURE - MATTERS RELATING TO JURIES
The respondent was charged with rape or alternatively indecent assault. On 27 October 2021, he pleaded not guilty to both charges and was placed in the charge of the jury. The trial commenced and, on 5 November 2021, the jury retired to consider their verdict.
Later that day, the trial judge received a jury note indicating that a juror had viewed social media posts made by the complainant over the preceding 10 years and had discussed his opinion that they were consistent with her “overall persona” with other jurors. The jury was discharged, and a mistrial declared.
Rather than seeking a new trial, the respondent made an application for an extension of the time within which to elect for a trial without a jury, with a view to the trial continuing without a jury and the trial judge delivering a verdict. The trial judge granted the extension of time, and, upon an election being made, adjourned to consider her verdict. On 30 November 2021, the trial judge published her reasons for verdict and acquitted the accused on both counts.
The Director of Public Prosecutions seeks permission to appeal against the acquittal on two grounds: first, that the first trial of the respondent having ended upon the trial judge discharging the jury and declaring a mistrial, the trial judge erred in delivering a verdict; and secondly, that the trial judge erred in extending the time for the respondent to elect for the first trial to proceed without a jury, in granting the application that the first trial proceed before her Honour without a jury, and in determining to proceed with the first trial and deliver a verdict.
Held, (Livesey P, Doyle and David JJA), the Director's application for permission to appeal should be granted, and the appeal allowed. The respondent's acquittal should be set aside. The matter should be remitted for retrial.
1.The effect of the discharge of the jury and declaration of a mistrial was to end the trial. No verdict could be delivered in the first trial once the jury had been discharged and a mistrial declared. The only option was to commence a second trial.
2.Further, and in any event, the power to extend the time to elect to proceed without a jury pursuant to r 42(5) of the Juries Rules 1996 (SA) ceased to be available once the respondent had entered a plea of not guilty and had been placed in the charge of the jury (at the commencement of…
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CaseChat Overview and Summary
The legal issues before the court were whether the trial judge possessed the power to continue the first trial without a jury after discharging the jury, and whether, in doing so, the judge had the authority to grant the accused an extension of time to elect to proceed without a jury under rule 42(5) of the Juries Rules. This required an examination of the relevant legislation and rules governing criminal trials in the state's superior courts, specifically the District Court Act and the Juries Act, and the Juries Rules concerning elections for trial by judge alone.
The court held that the power under rule 42(5) of the Juries Rules was not available to the trial judge after the jury had been discharged. The court reasoned that by the time the jury was discharged, the first trial had concluded, and any subsequent trial would require a new election under rule 44. Furthermore, the court determined that the power under rule 42(5) ceased to be available once the accused was placed in the charge of the jury, as at that point, the accused had irrevocably chosen the mode of trial. The court also noted that any application for an extension of time or an election to proceed without a jury should not be made conditionally or dependent on the identity of the presiding judge.
Consequently, the Director's application for permission to appeal was granted, and the appeal was allowed. The acquittal of the respondent was set aside, and the matter was remitted for a retrial.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
On 30 November 2021, the trial judge published her reasons for verdict and acquitted the accused on both counts.Consideration As explained at the outset of these reasons, the issue raised by the Director’s proposed appeal is whether, after discharging the jury, the trial judge had power to continue the first trial without a jury, and to proceed to deliver a verdict in that trial. This in turn requires consideration of whether, following the discharge of the jury, the trial judge still had power under r 42(5) of the Juries Rules to exercise her discretion to grant the accused an extension of the time within which to make an election to proceed without a jury. In short, it is our view that the Court’s power under r 42(5) was no longer available when the trial judge sought to exercise it. While the articulation of the power in r 42(5) does not contain any express limit upon the timing of its exercise, it could not be exercised after the jury had been discharged. By that point in time, the first trial had come to an end and the only option was to embark upon a second trial, with any election to proceed without a jury in the second trial to be made under r 44. However, we would go further than this and hold that the power under r 42(5) ceased to be available upon the accused being placed in the charge of the jury. By this point in the process, it was too late in our view for the accused to resile from the mode of trial he had chosen. The Court no longer had any power under r 42(5) to grant an extension of the time within which to make an election to proceed without a jury. In order to explain our reasons for coming to these conclusions, it is necessary to address some aspects of the legislation and rules of court governing the conduct of criminal trials in the superior courts of this state. The District Court has jurisdiction to hear criminal trials under s 9 of the District Court Act. By reason of s 6 of the Juries Act, the default mode of trial through which that jurisdiction is exercised is trial by jury. However, under s 7 of the Juries Act, an accused may, in accordance with the rules of court, elect to proceed by way of the alternative mode of trial, namely trial by judge alone. In understanding the provisions in the Juries Rules governing the time when an election to proceed with this alternative mode of trial may be made, it is relevant to consider the procedure by which an accused person comes to be tried in a superior court of this state. Following committal for trial in a superior court, an accused person will be arraigned in that superior court. The term “arraign” describes the process by which an accused person is called for trial, the information read, and a plea taken.[44] There is no reason in law why an accused person may not be arraigned on more than one occasion.[45] Certainly that reflects the practice in this state.[44] GG v The Queen (2010) 79 NSWLR 194 at [62] (Beazley JA, Buddin J and Barr AJ agreeing); R v Gee (2012) 113 SASR 372 at [243] (Peek J).[45] R v Nicolaidis (1994) 33 NSWLR 364 at 367 (Gleeson CJ, Smart and Studdert JJ agreeing); R v Janceski (2005) 64 NSWLR 10 at [187] (Woods CJ at CL).