R v Papalia

Case [2014] SASCFC 18

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v PAPALIA

[2014] SASCFC 18

Judgment of The Court of Criminal Appeal

(The Honourable Justice Vanstone, The Honourable Justice Stanley and The Honourable Justice Parker)

7 March 2014

CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION - PRESENTATION OF DEFENCE CASE

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MURDER - ALTERNATIVE VERDICTS - DIRECTIONS TO JURY

Appeal against conviction for murder - where appellant was implicated in the crime by the evidence of an accomplice who said that the appellant killed the victim by delivering two forceful blows to his head - where the appellant gave evidence that he was present but played no part in the killing - where trial judge told the jury that while the alternative verdict of manslaughter was available it was only a "theoretical possibility" - whether the directions regarding manslaughter would have been understood by the jury as being directions of law or whether they amounted to the judge impermissibly imposing his own view of the facts on the jury - whether the judge positioned the case as a contest between the competing versions of prosecution and defence - whether the judge effectively placed an onus on the appellant to prove his case - distinction between directions of law as opposed to fact - extent to which judge may comment on the facts of a case.

Held:  appeal dismissed.  The direction that manslaughter was "theoretically open" was not a direction of law and would not have been understood as such - the directions as a whole were not such as to overawe the jury or usurp its function - the directions did not imply that the case turned only on the jury's evaluation of the defence case - there was no reversal of the onus.

Gillard v The Queen (2003) 219 CLR 1; Azzopardi v The Queen (2001) 205 CLR 50; Green v The Queen (1971) 126 CLR 28; Broadhurst v R [1964] AC 441; R v Perdikoyiannis (2003) 86 SASR 262; R v Hulse (1971) 1 SASR 327, applied.
R v Allen (2011) 109 SASR 396; R v Joyce [1970] SASR 184; R v D (1997) 68 SASR 571; R v Bachra (2010) 108 SASR 204; R v Glover (1987) 46 SASR 310; R v Andrews [2002] SASC 233, (2002) LSJS 285, considered.

R v PAPALIA
[2014] SASCFC 18

Court of Criminal Appeal:  Vanstone, Stanley and Parker JJ

  1. VANSTONE J:     The appellant was found guilty of murder by verdict of a jury.  The evidence against him comprised both direct evidence given by one Stephen Zenuni, who had been jointly charged with the appellant but had pleaded guilty prior to trial, and also a body of circumstantial evidence.

  2. Zenuni told the jury that he had attacked the victim, Edward Camilleri, at the appellant’s instigation.  The victim had fought back.…

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AGLC
R v Papalia [2014] SASCFC 18
Case
[2014] SASCFC 18
Decision Date

CaseChat Overview and Summary

The appeal concerned a conviction for murder. The appellant, R v Papalia, was implicated in the killing of the victim by the evidence of an accomplice, Zenuni, who testified that the appellant delivered two forceful blows to the victim's head with a sledgehammer. The appellant gave evidence that he was present at the scene but denied any involvement in the killing. The central dispute revolved around the trial judge's directions to the jury regarding the alternative verdict of manslaughter.

The legal issues before the court were whether the trial judge's directions concerning the availability of a manslaughter verdict were properly understood by the jury as directions of law, or if they amounted to an impermissible imposition of the judge's own view of the facts. Specifically, the court considered whether the judge's characterisation of manslaughter as a "theoretical possibility" effectively positioned the case as a contest solely between the prosecution and defence versions of events, and whether this placed an onus on the appellant to prove his defence. The court was required to distinguish between permissible comments on the facts by a judge and directions that usurp the jury's function.

The Court of Appeal dismissed the appeal, finding that the direction that manslaughter was "theoretically open" was not a direction of law and would not have been understood as such by the jury. The court held that the directions, when considered as a whole, were not so overwhelming as to usurp the jury's function or imply that the case turned solely on the jury's evaluation of the defence's version of events. The court concluded that there was no reversal of the onus of proof. The judges agreed with the reasons provided by Vanstone J, who described the summing up as admirably clear and balanced.

Orders

Orders of the court

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Background

Background to the litigation

A third ground of appeal was argued before the single judge and permission to appeal was refused. While the appellant subsequently advised that he wished to renew his argument on that ground, upon the appeal, counsel indicated that it was not now pursued.Background The appellant acknowledged that his relationship with the victim had been a close one. The prosecution claimed that the appellant was in dire need of money at the time of the killing. The prosecution led evidence that it was known that the victim was involved in growing cannabis and kept substantial funds at his home. The accomplice, Zenuni, had known the appellant since December 2010. He told the jury that on 16 April 2011 – the morning of the crime – the appellant had telephoned him and asked for his help. The appellant told him that the victim was responsible for molesting his niece. At the instance of the appellant the two men went to the market garden property of the appellant’s grandparents, who were at that time away. There the two men used some cocaine. The appellant then telephoned the victim and arranged for him to attend there. The appellant then told Zenuni that the victim was a dangerous man who carried weapons and that he wanted to teach the victim a lesson. Zenuni said that while waiting for the victim to attend, the appellant took a hammer from one of the sheds on the property and placed it near to the benches where the men were sitting. When the victim arrived the appellant introduced him to Zenuni and there was some friendly discussion between the three men. At one point the victim went away from the area where they were seated and to his car. The appellant was then said to have instructed Zenuni that he was to hit the victim in the head with the hammer. He repeated that the man had molested his niece, that he was a paedophile, that he was dangerous and that he carried a gun. After the victim rejoined them Zenuni said there was more talk and use of cocaine. The appellant was furtively indicating to Zenuni to attack. The appellant seemed angry and agitated. Eventually Zenuni took up the hammer and struck the victim. The victim then jumped up in surprise. The appellant told Zenuni to “finish it”. Realising something of what was happening, the victim fought back and the two men went to ground, wrestling and punching each other. They were fighting over the hammer. Zenuni said he was getting the better of the victim, who was exhausted. He had taken possession of and discarded the hammer and was getting up when the appellant hit the victim’s head with a sledgehammer. The appellant then used both hands on the handle and raised it high above his head before striking again “with considerable force”. After the appellant delivered the second blow it appeared that the victim was dead. According to Zenuni’s evidence the appellant then searched the victim’s pockets, eventually locating his car keys. The appellant gave Zenuni a change of clothes, his being covered in blood, and soon after Zenuni left, driving the appellant’s car. Zenuni said he saw the appellant moving the victim’s body and concealing it. The prosecution case was that later, the appellant buried the body not far from the scene of the killing.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

PARKER J (dissent)
I would add that it is telling that senior counsel for the appellant at the trial made no complaint about the directions which are the subject of this appeal. Plainly the arguments now raised were not such as to concern trial counsel.Conclusion Neither ground of appeal is made out. Indeed, I consider the summing up was admirably clear and balanced. I would dismiss the appeal. STANLEY J: I would dismiss the appeal. I agree with the reasons of Vanstone J. I would dismiss the appeal. I agree with the reasons of Vanstone J and have nothing to add.

Ratio Decidendi

Legal Principle Established

Established by:

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