R v Papalia - [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

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.
Zenuni told the jury that he had attacked the victim, Edward Camilleri, at the appellant’s instigation. The victim had fought back. While the two men were grappling the appellant took up a sledge hammer and hit the victim to the left side of his head. The appellant then lifted the sledge hammer above his head and brought it into heavy contact with the victim’s head a second time. After the first blow the victim was moaning. After the second blow he was silent.
Upon the appeal two closely related grounds of appeal are agitated. The first is that, although the judge left manslaughter to the jury, in describing it several times as being “a theoretical possibility”, he effectively withdrew it. The second is that he erred when he told the jury that if it were reasonably possible that the accused did not hit the victim at all then he was not guilty of any offence. This latter, it was said, left the case to the jury as one of murder or nothing.
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.
Some months later the appellant took police to the scene, telling them that he had information that suggested the victim’s body had been buried there. The body was eventually located. Upon autopsy there were various injuries to the victim’s scalp as well as skull fractures on both sides. The damage was particularly severe on the left side, showing a large depression of the skull which had been broken into small pieces. It was to the left side that Zenuni described both blows being delivered.
Because the appellant had been a close friend of the victim, the victim’s family contacted him when it became apparent that he was missing. In the weeks following the victim’s death the appellant was in regular contact with the victim’s family and he advised them not to speak to police about the disappearance. He undertook to make enquiries about the victim’s whereabouts and to find him. The appellant gave various accounts to the family as to where the victim might be and the reasons for his absence. He asked for money from the victim’s family to assist in the search for the man. He told the family that he had spent $200,000 looking for the deceased and that he wanted the money back.
The prosecution led evidence from the victim’s nephew, Ryan Colombini, that together, but at the appellant’s behest, they went to the victim’s home and opened his two safes, one of which contained $48,000. Almost all of the money was, initially, divided between the two of them but, later, Colombini gave his share to the appellant, ostensibly to assist him in his efforts to locate the victim.
The victim’s family did not report his disappearance until 3 June 2011. In late August 2011 the appellant told the police that he and Colombini were the subject of an extortion attempt over the victim’s disappearance. He said he had been given a “blueprint” locating the position of the body. The “blueprint” included a demand for $20,000. He also implicated his cousin, also called Dominic Papalia, in the killing and the extortion.
The appellant gave evidence at his trial. He said that Colombini had been present at the market garden at the time of the killing, along with himself and Zenuni. He said they had all taken cocaine. He said an argument had broken out between the victim and Colombini and that it was Zenuni and Colombini who had killed the victim. He said that when the victim was dead Zenuni and Colombini departed the scene. The appellant said that initially he put the victim’s body in a wheelie bin, but two days later returned and buried it in the nearby shed. He said he did not report the killing as he feared retaliation. As I mentioned, Colombini gave evidence for the prosecution at trial. He denied being present when the victim was killed.
Arguments on Appeal
The first ground of appeal complains that, having determined that manslaughter should be left to the jury, and having correctly directed upon it, the judge effectively withdrew it from the jury’s consideration.
The passages specifically complained of follow, with the words impugned under this ground italicized. I have included the next two paragraphs for completeness. For convenience I have numbered each paragraph.
(i)Therefore, manslaughter is theoretically open if you found it proved that the accused wielded the hammer and caused the death, but you had a reasonable doubt as to whether he, in fact, was of the state of mind that he thought, in what he was doing, he intended to cause grievous bodily harm.
(ii)I hasten to add, however, although it is a matter for you, that in this particular case, manslaughter would be, at the very most, a very theoretical alternative verdict. As I say, it is a matter for you, but the defence in this case is not one of manslaughter. The defence in this case is ‘I did not hit him at all’. If that is reasonably possible, he will be not guilty of anything.
(iii)You may find - and it is a matter for you, not me - that if he did inflict those blows and the first three elements are made out, it would follow, as night follows day, that he intended to cause grievous bodily harm. You will remember Dr Charlwood’s evidence. But nevertheless, if you had a reasonable doubt as to whether he intended to cause grievous bodily harm, the verdict of manslaughter is open in the way that I have explained it. I hope that is clear.
(iv)So they are the four elements of murder that have to be proved beyond reasonable doubt and they are my directions. If you find him not guilty of murder because of a reasonable doubt about that fourth element, you will have to consider the verdict of, the question of, manslaughter. And, of course, if he did not inflict the blows at all, it has not been proved beyond reasonable doubt that he inflicted those blows, he is not guilty of both murder and manslaughter; your verdict would be one of not guilty.
The appellant argues that the error embodied in the directions at (i) and (ii) were compounded later in the summing up where the judge again referred to the alternative of manslaughter as “very theoretical”, but one which had to be left. Counsel argued that this amounted to advice to the jury that it could be ignored. Later again the judge described manslaughter as “not a realistic verdict”. Then again, much later, in answer to a jury request for clarification of the four elements of murder, the judge highlighted what he called “the real issue” in the case, namely whether the appellant hit the victim at all. The judge then mentioned the alternative verdict, which he observed was “on the factual issues in this case … merely a theoretical possibility.” He told the jury he would not repeat his direction on that unless asked, which he was not.
The appellant argues that the directions in paragraphs (i) and (ii) above, together with the later references, amount to a misdirection as to the law. It was suggested that the jury must have understood these passages as directions that the factual basis for manslaughter was so theoretical and so ludicrous as to render manslaughter not legally open to it. As I understand the submission it is that if the directions were not to be viewed as directions of law, then they amounted to the judge impermissibly imposing his own view of the facts on the jury, to the effect that manslaughter was not a live alternative.
Ground 2 is based on the direction set out at (ii) above, but specifically, the underlined part of it. It is argued that this direction amounts to telling the jury that, as a matter of law, manslaughter was not available because the case was one of murder or nothing. When pressed on this interpretation Mr Boucaut SC, counsel for the appellant, put that the sense of the direction was that since the accused claimed he did not touch the victim, the jury could ignore manslaughter. Counsel argued that the direction would be understood as going beyond its terms – that is the question of the interaction of the defence case and manslaughter – and would be interpreted as dealing with the case as a whole. Counsel put that this direction implicitly sidelined and neutralised the earlier, unexceptional, directions on the four elements of murder and positioned the case as a contest between the two versions. He also argued that the direction effectively placed an onus on the appellant to persuade the jury of his account. Mr Boucaut argued that this direction, standing alone, was such a departure from what was required as to bring down the conviction.
Analysis
At trial counsel for both sides asked the judge to leave manslaughter to the jury. That should have been done if there were a “viable case” to be left: Gillard v The Queen (2003) 219 CLR 1 at 14 per Gleeson CJ and Callinan J, or, to put it slightly differently, if it “arose fairly on the evidence”, using the words of Doyle CJ in R v Perdikoyiannis (2003) 86 SASR 262 at 268. At first blush Zenuni’s account of the killing left little room for doubt about the appellant’s intention to kill. On that account the killing was planned by the appellant with a view to obtaining the victim’s money, it was unambiguously carried out by him, and then concealed by him. If the jury accepted Zenuni’s evidence, corroborated as it was, then there would be barely scope for manslaughter. If the jury doubted Zenuni’s truthfulness and reliability then, especially having regard to the warning the judge gave about relying on his evidence, an acquittal would be all but inevitable. However, the evidence that both men used a significant quantity of cocaine before the victim’s arrival at the farmhouse and Zenuni’s evidence that, as a consequence, he felt “very light”, “confused” and that things seemed “very surreal”, might have sufficiently raised questions of Zenuni’s perception and reliability as an historian, such that it was appropriate to leave manslaughter. In any event, as I said, no counsel either at trial or upon the appeal has suggested manslaughter should not have been left.
I consider that it was prudent to leave manslaughter, even though the route by which it might be reached was a tortuous one and despite the fact that neither counsel had addressed upon it.
The question raised by ground 1 is whether in describing manslaughter as being only theoretically open the judge either gave what was tantamount to a direction of law withdrawing the alternative, or imposed his own view of the matter so as to, in effect, withdraw the alternative.
In Azzopardi v The Queen (2001) 205 CLR 50 at [50] the plurality adverted to the distinction between a direction of law and a comment on the facts. Their Honours said:
The judge's task in relation to the facts ends at identifying the issues for the jury and giving whatever warnings may be appropriate about impermissible or dangerous paths of reasoning. That is not to say that the judge may not comment on the evidence that has been given and comment about the facts that the jury might find to be established. But the distinction between comment and direction is important.
Such comments on the facts may be expressed in forceful terms: R v Joyce [1970] SASR 184, 198 per the Full Court; R v D (1997) 68 SASR 571, 580 per Cox J, approved in R v Bachra (2010) 108 SASR 204, 206 per Doyle CJ, White J agreeing. They may entail an expression of the judge’s own views about witnesses or the evidence given by them: Bachra at 206. The comments may go directly to the ultimate issue, for example R v Glover (1987) 46 SASR 310.
However, there are bounds beyond which a judge may not go. The judge must not mislead the jury or propound untenable theories: Broadhurst v R [1964] AC 441. The language used may not be so forceful to as to overawe the jury or to convey the impression that “there is really nothing to decide or that they would be fatuous or disrespectful if they disagreed with the judge’s views”: R v Hulse (1971) 1 SASR 327, 335 per the Full Court. To put it differently, the comments may not have the effect of usurping the jury’s function. The summing up as a whole must not be lacking in judicial balance: Green v R (1971) 126 CLR 28, 34.
In Glover this Court dealt with a complaint about what the trial judge called “comments of his own”, being of a general nature and delivered to the jury at the conclusion of a summing up. The appellant’s counsel claimed that the comments were so pointed – tending strongly in the direction of a conviction – as to amount to a usurpation of the function of the jury. King CJ (with whom Jacobs and Millhouse JJ agreed) dismissing the complaint said this at 314:
It is quite clear that a judge is entitled to give the jury such assistance as he sees fit upon the facts, provided he does so fairly. It is not a criticism of the summing up that he makes reference to points which tend in the direction of conviction if those points may fairly be made upon the evidence in the case and if he makes it clear to the jury that the facts are within their province and not within the trial judge's and that they are perfectly entitled and, indeed, ought to disregard his views if they see the case in a different light. In my view, the judge did no more than he was entitled to do.
In R v Andrews (2002) 220 LSJS 285; [2002] SASC 233 a complaint similar to the present one was made in relation to a direction to the jury that manslaughter was “technically open”. That was a strangulation case and the defence was that the accused was not involved at all in the woman’s death. The judge told the jury:
There is no need in this case for me to dwell on the law relating to murder because you will probably have no difficulty in deciding, although it is a matter for you, that Mrs Jenkins was murdered.
The more critical question for you will be whether the Crown has proved beyond reasonable doubt that the accused was the culprit.
As the presiding judge, I have also to give you a direction about manslaughter. A verdict of guilty of manslaughter is always technically open although neither counsel has suggested it in this case.
Later the judge told the jury members that he imagined they would have no difficulty in deciding that the person who strangled the victim intended to cause at least grievous bodily harm.

Doyle CJ, with whose reasons Prior J agreed, found (at 293) that the judge’s comments were “well open to him” and that there was no reason to apprehend that the jury would have understood the direction to be one of law.
Another similar complaint was made in R v Allen (2011) 109 SASR 396. Again the charge was murder and the appellant had denied causing the victim’s death. The judge left manslaughter to the jury but directed that, although the matter was for the jury, in practical terms there was little room for that verdict, because the act of applying pressure to another’s neck pointed “fairly unequivocally” to intention to kill or cause grievous bodily harm: [43]. The Court (Kelly J, Doyle CJ agreeing) rejected the complaint that the alternative verdict had been, in effect, withdrawn: [46]-[53].
Complaints about directions such as these need to be considered in the light of the whole of the evidence, the way the respective cases have been presented and the whole of the summing up. Whether the impugned direction or comment goes to the ultimate issue, as opposed to a subsidiary one, will sometimes be of importance.
In the present case it is not suggested that the directions setting out the elements of either murder or manslaughter were other than strictly correct. There is no issue of the jury being misled. Nor do I consider that it can realistically be said that the jury could have been overawed by the direction. The jury were told that the facts were for them, not only as a general proposition, but also in the course of the impugned direction itself. They were also told of the way in which manslaughter could come into play (paragraph (i) above) and of the evidence which the judge said rendered the alternative a theoretical one (paragraph (iii) above). The suggestion that this amounted to a direction of law is untenable.
I consider that it was well open to the judge to make these observations. Indeed, in circumstances when neither counsel had addressed on the alternative, it was incumbent on the judge to deal with the matter clearly and helpfully, as in my view he did. I see no indication in the summing up of a tendency to overawe the jury or usurp its function. On the contrary, the summing up was a very balanced one.
I find the complaint embodied in ground 2 harder to follow. The fact is that the direction in paragraph (ii) above is factually and legally correct. On the defence case manslaughter did not arise. However the direction did not imply that the case turned only on the jury’s evaluation of the defence case. That very point was made in the paragraph immediately preceding, as well as in (iv), and was clear from the full directions on the elements of murder which preceded the questioned directions. I find the complaint about a reversal of onus similarly abstruse. In my view the directions clearly located the defence case in the context of the directions on the law, as the judge was required to do. To instruct the jury that, if the defence was “reasonably possible”, an acquittal must follow was simply to express the concept of onus in the negative. That is commonly done as a matter of convenience. Elsewhere, the judge directed on the onus in strictly orthodox terms. I do not consider that there was any risk at all of the jury mistaking the judge’s meaning.
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.
PARKER J. I would dismiss the appeal. I agree with the reasons of Vanstone J and have nothing to add.