R v Stakaj & N, H
[2015] SASCFC 139
•25 September 2015
SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
CASE STATED ON ACQUITTAL NO 1 OF 2015; R v STAKAJ & N, H
[2015] SASCFC 139
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Gray and The Honourable Justice Sulan)
25 September 2015
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MURDER - ALTERNATIVE VERDICTS - GENERALLY
APPEAL AND NEW TRIAL - NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS - PARTICULAR GROUNDS - IRREGULARITY AS REGARDS PROCEDURE - MATTERS RELATING TO JURIES
APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - POWERS OF COURT - OTHER MATTERS
JURY - CONFIDENTIALITY OF JURY ROOM AND DELIBERATIONS
PROCEDURE - COURTS AND JUDGES GENERALLY - COURTS - EXERCISE OF JURISDICTION WHERE NO PROCEDURE SPECIFIED
Application by the Director of Public Prosecutions to expunge or quash verdicts of acquittal for all four defendants on one count of murder. On 4 August 2012, there was a fight outside Savvy nightclub on Light Square Adelaide. As a result, the victim died of stab wounds. The four defendants were alleged to have been involved. The jury returned a majority verdict of not guilty to murder and guilty to manslaughter.
The four defendants were found not guilty by majority of murder, and guilty by majority of manslaughter. At about 4.50 pm that day, the foreman of the jury advised the Acting Jury Manager that the answer given to the question about reaching a majority verdict of not guilty of murder was incorrect. The foreman had answered "Yes" to the question of whether a majority verdict of not guilty had been reached, when the answer should have been "No". The parties were informed of the jury error on 30 September 2014. Affidavits were obtained from the jurors confirming that the foreman had made an error when delivering the verdicts.
The defendants, Stakaj and HN, appeal their conviction of manslaughter on the ground that there was a failure to comply with the requirements of s 57 of the Juries Act 1927 (SA), resulting in a miscarriage of justice. The convictions of manslaughter should be quashed, and a new trial ordered on that charge alone.
Held (Gray and Sulan JJ, Kourakis CJ agreeing):
1. The affidavits of the jurors are admissible insofar as they show that the jury had not resolved to return verdicts of not guilty of murder.
Held (Gray and Sulan JJ):
2. Section 57 of the Juries Act required the jury to consider whether a majority of ten or more jurors were agreed upon an acquittal of murder. The verdicts were delivered in contravention of s 57. The order of the Court had not been carried out by the process of law.
3. The Supreme Court has an inherent power to preserve and protect its processes, including by setting aside invalid verdicts that do not comply with statutorily mandated legal provisions.
4. The Director's application is allowed, and the verdicts of not guilty of murder in the case of each defendant are quashed.
5. In the case of each defendant, there be a retrial on the charge of murder.
Held, dismissing the Director's application (Kourakis CJ):
6. The Court does not have power to set aside the finding of acquittal.
Held, as to Stakaj and HN's appeal (Kourakis CJ):
7. The jury had not then resolved to return a verdict of not guilty of murder. The foreperson miscommunicated that verdict to the Court. On that miscommunication there has been a miscarriage of justice.
8. On the decision of the majority there is no conviction against which an appeal can be brought.
Criminal Law Consolidation Act 1935 (SA) s 350(6), s 351A, s 352(1); Juries Act 1927 (SA) s 6, s 55, s 56, s 57; Supreme Court Act 1935 (SA) s 6, s 17, referred to.
Maher v The Queen (1987) 163 CLR 221; Cheatle v The Queen (1993) 177 CLR 541; Huddart, Parker & Co Pty Ltd v Moorehead (1909) 8 CLR 330; Brownlee v The Queen (2001) 207 CLR 278; Wu v The Queen (1999) 199 CLR 99; Newell v The King (1936) 55 CLR 707; R v Thomas S5911, SASFC, 11 December 1996; Milgate v The Queen (1965) 38 ALJR 162; Smith v Western Australia (2014) 250 CLR 473; Nanan v The State (Trinidad and Tobago) [1986] AC 860; Ras Behari Lal v King-Emperor (1933) 60 LR Ind App 354; R v Softley (1999) 206 LSJS 48; Ellis v Deheer [1922] 2 KB 113; R v Cefia (1979) 21 SASR 171; Head v The Queen [1986] 2 SCR 684; R v Glastonbury (2012) 115 SASR 37; R v Wilton (2013) 116 SASR 392; R v Pan [2001] 2 SCR 344; R v Skaf (2004) 60 NSWLR 86; Grassby v The Queen (1989) 168 CLR 1; Assistant Commissioner Condon v Pompano (2013) 252 CLR 38; Hunter v Chief Constable of West Midlands [1982] AC 529; Bailey v Marinoff (1971) 125 CLR 529; Rogers v The Queen (1994) 181 CLR 251; Moti v The Queen (2011) 245 CLR 456; Jackson v Sterling Industries Ltd (1987) 162 CLR 612; The King v Snow (1915) 20 CLR 315; Bremer Vulkan Schiffbau und Maschinenfabrik v South India Shipping Corp Ltd [1981] AC 909; Connelly v Director of Public Prosecutions [1964] AC 1254; Harris v Caladine (1991) 172 CLR 84; Batistatos v Newcastle City Council (2006) 226 CLR 256; Zaoui v Attorney General [2005] 1 NZLR 577; Cameron v Cole (1944) 68 CLR 571; Burrell v The Queen (2008) 238 CLR 218; R v Nakhla (No 2) [1974] 1 NZLR 453; Director of Public Prosecutions v Shirvanian (1998) 44 NSWLR 129; Smith v The Queen [2015] HCA 27; R v Bear [1697] 2 Salk 646; Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139; Evans v Davies [1991] 2 Qd R 498; Biggs v Director of Public Prosecutions (1987) 17 WAR 534; Clone Pty Ltd v Players Pty Ld (In Liquidation Receivers Appointed) & Ors [2012] SASC 12; R v Nam [1968] SASR 107; Musgrove v McDonald (1905) 3 CLR 132; Bright v Eynon (1757) 1 Burr 390; 97 ER 365; Monroe Schneider Associates (Inc) v No 1 Raberem Pty Ltd [No 2] (1992) 109 ALR 137; R v Gbojueh (2009) 103 SASR 545; Skewes v Veenhuizen (1978) 20 SASR 109; Players Pty Ltd (In Liquidation) v Clone Pty Ltd (2013) 115 SASR 547; R v JS (2007) 203 FLR 276, considered.
CASE STATED ON ACQUITTAL NO 1 OF 2015; R v STAKAJ & N, H
[2015] SASCFC 139Court of Criminal Appeal: Kourakis CJ, Gray and Sulan JJ
KOURAKIS CJ: I have had the advantage of reading the judgment of Gray and Sulan JJ. I adopt the summary of the evidence received on the trial, and of the procedural history of the matter, including the events after the delivery of verdict, found in the reasons for judgment of their Honours. I have reached a different conclusion on the applications by the Director of Public Prosecutions and would dismiss those applications. I would find that the appeals of Stakaj and HN should be allowed and the matters remitted for trial on the charge of manslaughter.
My point of departure is not on the question of admissibility of the evidence about whether there was a miscommunication of the jury’s position when the foreperson was asked, as to each accused, whether a majority of the jury were agreed on verdicts of not guilty. The question of admissibility must be answered in the same way on both applications. The point of departure is on the power of this Court to set aside a judgment of acquittal based on a jury verdict of not guilty. In the case of a conviction the Full Court of this Court is expressly given that power by s 353 of the Criminal Law Consolidation Act 1935 (the Act). There is no statutory grant of jurisdiction or power to set aside a perfected judgment of acquittal discharging an accused after a verdict of not guilty returned by a jury. So much is conceded by the Director who instead argues that the Court should delve into its inherent powers and fashion a never before contemplated power to set aside judgments of acquittal, notwithstanding the centuries old principles and procedures of the common law which have accorded such judgments, subject to certain presently immaterial exceptions, inviolability.
References to the principle of the inviolability of judgments of acquittal based on jury verdicts in the common law courts can be traced back to the 17th century by which time it was already well established. In 1697 in R v Bear[1] the King’s Bench considered a motion for a new trial brought by the Attorney-General after the defendant was acquitted by verdict of a jury on an indictment for libel. The King’s Bench denied the motion on the ground that “anciently it was never done in criminal cases where defendants have been acquitted”. The only exception recognised by the King’s Bench was the case of an acquittal procured by the fraud of the accused.
[1] [1697] 2 Salk 646.
In 1816 in Chitty’s Criminal Law the principle is stated as follows:
A new trial cannot, in general, be granted on the part of the prosecutor, after the defendant has been acquitted, even though the verdict appears to be against evidence. But it seems to be the better opinion, that where the verdict was obtained by the fraud of the defendant, or in consequence of irregularity in his proceedings, as by keeping back the prosecutor’s witnesses, or neglecting to give due notice of trial, a new trial may be granted.[2]
[2] Chitty’s Criminal Law Vol 1 p 657.
I reject the Director’s contention that there is reason to depart from this long standing principle.
My reasons follow.
The conviction appeals – Stakaj and HN
The appeals of Stakaj and HN are brought pursuant to the statutory right of appeal conferred by s 353 of the Act and the admissible evidence shows that the miscommunication of the jury’s verdict has resulted in a miscarriage of justice within the terms of that section.
The statutory introduction of the facility of an appeal by way of rehearing against common law judgments, on the civil side, introduced by the Supreme Court of Judicature Act 1873 36 & 37 Vict, c.66 was “virtually unprecedented”.[3] Even after that reform of civil procedure, on the criminal side the verdict of the jury, which is often described as the “constitutional arbiter of facts”, retained its unimpeachable status for a further quarter of a century. Appellate review of criminal convictions, of a much more restricted kind than the rehearing allowed in civil appeals, was first introduced in England by the Criminal Appeal Act 1907 7 Edw VII, c.23.[4] The Criminal Appeal Act became the template for legislation throughout the British Commonwealth, including s 353 of the Act, and its provisions are often referred to as the common form criminal appeal provisions. Common form criminal appeal provisions were first enacted in South Australia by the Criminal Appeals Act 1924 (SA).
[3] Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 143 per Kirby J.
[4] The Criminal Appeal Act 1907 7 Edw VII, c.23 was introduced after an enquiry conducted by Richard Hen Collins into the wrongful convictions, based on mistaken identifications, of Adolph Beck in 1896 and 1904.
Section 353 of the Act provides:
353—Determination of appeals in ordinary cases
(1)The Full Court on any such appeal against conviction shall allow the appeal if it thinks that the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence, or that the judgment of the court before which the appellant was convicted should be set aside on the ground of a wrong decision on any question of law, or that on any ground there was a miscarriage of justice, and in any other case shall dismiss the appeal; but the Full Court may, notwithstanding that it is of the opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred.
…
The limb of s 353(1) on which Stakaj and HN rely is that there has been a miscarriage of justice. Broadly speaking there is a miscarriage of justice when there is a departure from the law and procedure governing a criminal trial which denies an accused a material opportunity for an acquittal. The evidence shows that all of the jurors have deposed and agree, that the verdicts of “not guilty” of murder returned in response to the associate’s interrogation were miscommunicated and were “slips” because the prescribed majority for that verdict was never attained and the jury never resolved to return that verdict. Plainly enough the recording of a verdict the jury did not intend to return is a serious irregularity of trial procedure. If the foreperson had informed the Judge that the jurors were not agreed unanimously, or by majority, on verdicts of not guilty of murder, the jury would have been discharged without taking the verdicts on the alternative charge of manslaughter and a new trial ordered. It cannot be said that on the new trial, the appellants would necessarily have been convicted of manslaughter. It follows that there has been a miscarriage of justice.
An enquiry into whether or not there was a “slip” in the pronouncement in open court of the jury’s verdict is not an enquiry into the jury’s deliberations. It is an enquiry into whether there has been a mistaken communication of the result of those deliberations. The rule precluding evidence of a jury’s deliberations does not stand in the way of Stakaj and HN demonstrating the miscarriage of justice of which they complain. My reasons for reaching that conclusion require further elaboration.
All of the jury agree that they did not reach the verdict of not guilty of murder which was communicated to the court. They all agree that the foreperson misspoke. The error here is therefore the kind described in [2] of the passage from Wigmore on Evidence, reproduced at [114] of the judgment of Gray and Sulan JJ.
Macrossan CJ in Evans v Davies[5] described this category of case as one in which “the jury did not, in fact, agree upon the answer taken from them because some error occurred in conveying to the court a verdict which they unanimously agreed should be given”. This is the kind of case in which to adopt the words of McCrossan CJ “there is error occurring at a point between verdict agreed and verdict communicated”. For these purposes there is no distinction between miscommunication of a verdict reached and the communication that a verdict has been reached when it has not.
[5] [1991] 2 Qd.R. 498 at 501-502.
The mistake here is relevantly different to that considered by the Privy Council in Nanan v The State (Trinidad and Tobago).[6]Nanan had been charged with murder which, under the law of Trinidad and Tobago, required a unanimous verdict of a jury of twelve. The Judge did not refer to the necessity for a unanimous verdict in his charge but the jury were asked if they had reached a unanimous verdict before delivering their verdict of guilty. In Nanan the day after the foreperson delivered the verdict of guilty, in the presence and hearing of all jurors, he and another juror informed the registrar that the jury had actually divided eight to four in favour of conviction. The foreperson’s explanation for giving the verdict was that he did not understand the meaning of the word “unanimous”. Nanan asked the trial Judge to set aside the verdict on the unanimity ground but that application was refused. Nanan brought an appeal against his conviction under the criminal appeal provisions but on grounds other than the unanimity ground. That appeal was dismissed. Nanan then brought an application for a declaration claiming a breach of his right to due process under s 4 of the Constitution of the Republic of Trinidad and Tobago. That application for a constitutional declaration was refused by the Court of Appeal of Trinidad and Tobago. Nanan appealed against that decision to the Privy Council which also granted leave to appeal against the decision dismissing the criminal appeal on the unanimity ground. The Privy Council dismissed Nanan’s appeal for the reasons given in the speech of Lord Goff:
In presenting the appeal before their Lordships, Mr Turner-Samuels had to face the fact that there is indeed a well-established general principle that “the court does not admit evidence of a juryman as to what took place in the jury room, either by way of explanation of the founds upon which the verdict was given, or by way of statement as to what he believed its effect to be”: see Ellis v Deheer [1922] 2 K.B. 113 at p. 121, per Atkin L.J. The same principle applies to discussions between jurymen in the jury box itself. If a juryman disagrees with the verdict pronounced by the foreman of the jury on his behalf, he should express his dissent forthwith; if he does not do so, there is a presumption that he assented to it. If follows that, where a verdict has been given in the sight and hearing of an entire jury without any expression of dissent by any member of the jury, the court will not thereafter receive evidence from a member of the jury that he did not in fact agree with the verdict, or that his apparent agreement with the verdict resulted from a misapprehension on his part.
This principle can be traced back at least as far as the decision of the Court of Queen’s Bench in R v Wooler (1817) 6 M. & S. 366; but it has been confirmed on numerous occasions … So the court has refused to receive evidence from a juror that he did not understand the effect of an answer given by the foreman of the jury to a question put by the trial judge (Raphael v Bank of England), or that he did not in fact agree with the verdict as announced (Nesbitt v Parrett), or that he was suffering from a misapprehension when he agreed to answers given by the foreman of the jury (Boston v Bagshaw), or that he disagreed with the verdict but was too frightened to stand up and say so (R v Roads).
[6] [1986] AC 860.
There are two important distinctions between Nanan and this case. First Nanan was a case in which only some jurors gave evidence that the verdict was not a unanimous one. It was not a case of the whole jury informing the court that their verdict was miscommunicated. That distinction is critical if one proceeds by analogy with the principle of rectification mentioned in Wigmore and if the communication of the verdict is to be treated as a slip. There is great practical sense, even if the logical necessity is open to doubt, in delineating between cases in which the jury unanimously agrees that the foreperson has miscommunicated its verdict and, cases involving misunderstanding by only miscommunication of a jury verdict and, the cases involving misunderstandings by some jurors. The prospect of a trial of a factual dispute between jurors as to their subjective understanding is reason enough to draw the line suggested by Wigmore. Secondly the evidence in Nanan did not show that the verdict delivered was not the verdict agreed upon. The circumstance that the jury may have resolved to deliver a guilty verdict on a mistaken understanding of what “unanimity” required did not negate the verdict. Indeed the possible circumstance concerns the jury’s deliberations and is therefore shielded from any investigation.
In the Western Australian case of Biggs v Director of Public Prosecutions[7] an accused was acquitted of seven indictable offences in the District Court. The law required the verdict to be unanimous. The forewoman had answered in the affirmative when asked “is that the unanimous verdict of you all”. Within 25 minutes after the jury was discharged, they returned to the courtroom and informed the Judge that the verdicts had been by majority only. The jury had mistakenly believed that unanimity was not required. The not guilty verdicts were set aside and the accused remanded for re-trial. The accused applied to the Supreme Court for a declaration that the District Court Judge’s orders were invalid and for declarations that the judgments of acquittal and the verdicts of not guilty were valid. A single judge of the Supreme Court refused the application but that decision was set aside on appeal. The Full Court of the Supreme Court, so as not to interfere with the orders of the District Court, which it held was a superior court of record, did not make the precise orders sought but instead made a declaration that the accused had been acquitted. Franklin and Walsh AJJ held that the trial Judge was functus officio when she enquired about the jury’s unanimity and then set aside their verdict. However their Honours went on to hold that even if the Judge was empowered to vacate the judgment, the jury’s mistake was not of a kind which vitiated a judgment of acquittal.
[7] (1997) 17 WAR 534.
Even assuming the trial judge to have been entitled to enter upon her inquiry, those inquiries, in my opinion, were misdirected. The proper question was whether the not guilty verdicts were unanimously agreed upon as the verdicts to be given, even if the jury were under a misapprehension that such a verdict did not require unanimity. In my view, if that were the case, then the verdict delivered was the unanimous verdict in respect of each count. That inquiry, however, was never made. This is not a case such as R v Vodden (1853) Dears CC 229 ; 169 ER 706 where, a guilty verdict having been unanimously agreed upon by the jury, that announced by the foreman as the verdict was either one of “not guilty” or erroneously thought by the trial judge and his clerk one of “not guilty” and entered as such. The prisoner was then discharged. Members of the jury however intervened and informed the trial judge that the verdict was one of guilty. The prisoner was brought back and the jury again asked for its verdict which was unanimously given as “guilty”. On appeal it was held that there had been a mistake in the verdict originally entered in that it was not the verdict agreed upon, and it was “a mistake … corrected within a reasonable time, and on the very spot on which it was made”.
In Andrews v The Queen (1985) 82 Cr App R 148 the jury returned the verdict of not guilty in respect of the appellant and guilty in respect of his co-accused. Ten minutes later, whilst the co-accused's counsel was addressing in mitigation, the foreman advised the trial judge that the jury had made a mistake in that, whilst finding the appellant not guilty as charged, they were finding him guilty of a lesser offence. An amended verdict was then taken, finding the appellant guilty of the lesser offence. That verdict was upheld on appeal. In coming to its decision, the Court of Appeal relied upon Vodden and an earlier decision, R v Parkin (1824) 1 Mood CC 45 ; 168 ER 1179 , and said:
“It seems to this Court, both on those two authorities and as a matter of general principle, that the position in law is as follows: where the jury seeks to alter a verdict which has been pronounced by the foreman, the judge has a discretion whether to allow the alteration to be made. In exercising that discretion, he will, it goes without saying, take into account all the circumstances of the case; in particular the important considerations will be the length of time which has elapsed between the original verdict and the moment when the jury express their wish to alter it, the probable reason for the initial mistake, the necessity to ensure that justice is done not only to the defendant but also to the prosecution. The fact that the defendant has been discharged from custody is one of the factors but is not necessarily fatal to the judge's discretion to alter the verdict to one of guilty. If the jury have been discharged and a fortiori if they have dispersed, it might well be impossible for the judge to allow the verdict to be changed. That however it is unnecessary to decide upon the instant appeal. Clearly if there were any question of the jury's verdict being altered as a result of anything they heard after returning their initial verdict, then there could be no question of allowing a fresh verdict to be returned. But there is here no possibility of that having occurred. So much is entirely plain both from the jury's note and from the circumstances in which it was submitted.”
That passage makes clear that the decision related only to the case of a wrong verdict pronounced by the foreman in the sense that it was not the verdict agreed upon by the jury, the error lying in the communication to the court of the true verdict.
It is not in dispute that there is a long-standing presumption, founded in a long line of authority, that a verdict given in the presence and hearing of all members of the jury, in the absence of any dissent then made, is the verdict of the jury. …
…
In the present case the material available does not suggest any error in the delivery of the verdict, but rather a misapprehension on the part of at least some of the jurors as to the basis on which they might agree upon a verdict. It is not said that the verdict given was not that agreed upon. Such a misapprehension is not capable of rebutting the presumption of validity of the verdict: see Nanan (at 872). In my opinion his Honour erred in concluding that the verdict given was, by mistake on the part of the foreman, “in communicating to the court the result of the jury's deliberations”. There was nothing in the material before the learned trial judge which led her to make a further inquiry of the jury which could properly lead to that conclusion. At best it identified a verdict agreed upon due to a misapprehension. Further, on the facts outlined by the learned trial judge and his Honour, I would find that both she and the jury were functus officio at the time she set aside the verdicts.
The drawing of the line in Biggs between an erroneous understanding of the preconditions to reaching a verdict and the miscommunication of a verdict is perhaps subtle but it is nonetheless sound. Applying that distinction to this case if the jury had agreed upon a verdict of not guilty of murder, thinking that it was sufficient that a majority agreed to a verdict of manslaughter, even though a majority had not reached a verdict of not guilty of murder, then evidence of the misapprehension under which they deliberated would be inadmissible. However, the effect of the evidence here is that the jury did not reach, and did not resolve to return, a verdict of not guilty of murder. But for the miscommunication of their foreperson, the jury would have attempted to return a verdict of guilty of manslaughter after informing the court that they had not been able to reach a verdict of not guilty of murder. The foreperson appears to have responded in a way which he may have thought was logically consistent with the jury’s decision to return a verdict of guilty of manslaughter, but in doing so he communicated a verdict that the jury had not resolved to return.
The principle in Wigmore on which this distinction is drawn was applied in R v Cefia by King CJ. King CJ and Sangster J discussed the period in which the verdict may be corrected at trial in these terms:[8]
We are not called upon to decide whether there is a time limit, or a limit by reference to the stage of the proceedings, after which a correction may not be made. It is sufficient for us to decide, as we do, that in the case before us the correction was still available when it was made. We note that in some of the authorities already referred to where a correction was made, the erroneous statement by the foreman had been accepted as the verdict of the jury, the accused had been released, a note had been made of the “verdict”, and the jury had been discharged but had not dispersed. In other of the authorities where the correction was not made but a new trial was ordered more time had elapsed and, in particular, the jury had dispersed. It may be—although we do not decide—that there is a distinction as to the time at which the erroneous statement of the verdict can be corrected by the substitution of the actual verdict and the time at which the false “verdict” may be expunged and a new trial ordered. There is certainly authority supporting the division of the problem into two parts—expunging the false “verdict”, and choosing the consequences i.e. correction or new trial. It is not necessary, however, for us to decide, and we express no opinion, as to what the position would have been in this case if the jury had separated and left the precincts of the court before the error was disclosed. We also note that the “record” of a conviction in the Supreme Court (and, it may well be, in the District Criminal Courts) is not the endorsement by the Clerk of Arraigns, or other officer, on the back of the information of the proceedings at, or the result of, the trial, nor any note made by such officer or by the judge in any note book, but the formal report signed by the trial Judge at the end of the sittings after the last prisoner in that sittings has been dealt with (Reg v Nam and Sansbury).
[8] (1979) 21 SASR 171 at 175.
Three observations can be made about that passage. First, the subject matter of the discussion is the period in which the trial court retains the power to allow a jury to return its true verdict before the judgment of acquittal is perfected. Nonetheless King CJ considered that the power was capable of correcting a “false” verdict which I take to mean a verdict which the jury had not resolved to return. Secondly, the passage does not contemplate, or even hint at, an inherent power to set aside a judgment of acquittal after it is perfected. Thirdly, the practice of this Court and the District Court as to the recording of orders in their criminal jurisdiction has now changed and the point at which the orders are perfected may now differ.
I conclude that the evidence tendered by the Director is admissible to the extent that it shows that the foreperson delivered verdicts of not guilty of murder which the jury had not resolved to return and that by reason of that miscommunication there has been a miscarriage of justice in the convictions of Stakaj and HN. In the ordinary course a miscarriage of this kind would result in an order for a retrial. Both Stakaj and HN have also appealed on the ground that verdict was unreasonable and cannot be supported having regard to the evidence. Argument on that ground was adjourned pending determination of the mistaken verdict ground. On the decision of the majority allowing the Director’s application, there is no conviction against which an appeal can be brought pursuant to s 353 of the Act. There is therefore no utility in me hearing submissions from Stakaj and HN on their unreasonable verdict grounds. It is sufficient that I indicate that I would have set aside the convictions of manslaughter and would have listed the appeals of Stakaj and HN for argument on the unreasonable verdict ground. The convictions of Stakaj and HN having been set aside, their sentence appeal is functionless and should be dismissed.
The Director’s Application
The position with respect to judgments of acquittal entered after a verdict of not guilty returned by a jury is very different.
In Clone Pty Ltd v Players Pty Ltd (In Liquidation Receivers Appointed) & Ors[9] I traced the history of the strong position taken by the common law courts on the finality of their judgments:
The superior common law courts took a much more rigid position [than the Chancery] which entrenched the finality of their orders. The superior common law courts exercised the power to order a new trial only before judgments, founded on a jury verdict, were entered into their records. The record of the Court was not finalised, and was in the “breast of the court”, during the term in which it was given and could therefore be corrected in that term.[10] That power appears to have its origins in the concern of the Courts of Common Pleas and King’s Bench, after they had settled in Westminster,[11] to supervise proceedings held before justices on commission in other parts of the country.[12] The judges on circuit (nisi prius) acted as, and for, the Court in Westminster.[13] They would transmit a record of the proceedings, a postea, to the Court in Westminster. The entry of judgment on that record was, by practice, delayed until the fourth day of the following term.[14] By the 17th century, the court of King’s Bench, in banc, would entertain a motion made in those four days to stay the entry of judgment and order a new trial.[15]
By the 18th century it was also accepted that the King’s Bench could grant a new trial in an action heard at Westminster before judgment was entered. In Bright v Eynon,[16] Lord Mansfield recognised the necessity of the power for both trials in banc and nisi prius because of the ineffectiveness of the jury attaint procedure[17] and the delay and expense of seeking a remedy in Chancery. A new trial would be granted if “the justice of the case demands it”. Lord Mansfield mentioned fraud, covin,[18] excessive damages, and verdicts against the weight of the evidence as grounds for the exercise of the discretion to order a new trial.[19] Lord Mansfield also referred to cases where the “parties may be surprized, by a case falsely made at the trial, which they had no reason to expect, and therefore could not come prepared to answer.”
[9] [2012] SASC 12 at [22]-[23]
[10] R v Nam [1968] SASR 107 at 108.
[11] W.S. Holdsworth, A History of English Law, (Methuen & Co. Ltd, Volume 1, 7th ed, 1956) 206.
[12] Justices of assize were judges of the common law courts, or sergeants who were authorised by commission to hear the trials of actions commenced in the common law courts on circuit. Criminal matters were heard on circuit in accordance with a jurisdiction conferred by various commissions. The sittings were designated nisi prius because trials would be listed in Westminster unless heard beforehand, nisi prius, on circuit. W.S. Holdsworth, A History of English Law (Methuen & Co. Ltd, Volume 1, 7th ed, 1956) 281.
[13] W.S. Holdsworth, A History of English Law (Methuen & Co. Ltd, Volume 1, 7th ed, 1956) 281.
[14] W.S. Holdsworth, A History of English Law (Methuen & Co. Ltd, Volume 1, 7th ed, 1956) 281 – 282.
[15] Musgrove v McDonald (1905) 3 CLR 132 at 147 - 148 citing Lord Blackburn in South-Eastern Railway Co. v. Smitherman 47 J.P., 773. The practice of the Court of Common Pleas of granting new trials can be traced back even earlier to the fourteenth century: W.S. Holdsworth, A History of English Law (Methuen & Co. Ltd, Volume 1, 7th ed, 1956) 225.
[16] Bright v Eynon (1757) 1 Burr 390; 97 ER 365.
[17] The unsuccessful party to a common law action could charge the jury which brought in the adverse verdict with returning a false verdict, but that harsh procedure fell into disuse and was abolished in 1825. D.M. Gordon QC, ‘Fraud or New Evidence as Grounds for Actions to Set Aside Judgments – I’ (1961) 77 LQR 358 at 362.
[18] Collusive action between parties to proceedings to defraud another.
[19] Monroe Schneider Associates (Inc) v No 1 Raberem Pty Ltd [No 2] (1992) 109 ALR 137 at 147; see also D.M. Gordon QC, ‘Fraud or New Evidence as Grounds for Actions to Set Aside Judgments – I’ (1961) 77 LQR 358 at 362 and W.S. Holdsworth, A History of English Law (Methuen & Co. Ltd, Volume 1, 7th ed, 1956) 340 – 344.
There is a complementary rule of the common law which precludes the impeachment of jury verdicts. In the late 17th century it was held by the Court of Common Pleas in Bushell’s Case[20] that the writ of attaint did not lie against a jury which had returned a verdict of not guilty. In R v Gbojeuh[21] I set out the historical development of that rule:
Juries have been protected from proceedings brought against them with respect to their verdicts for so long that it is not widely known that that was not always the common law position. In the early development of the common law jurors were subject to the writ of attaint. By that writ a suitor could secure the reversal of the jury’s verdict and the imposition of punishment, including imprisonment for a year, on the jurors in the first trial. The attaint jury would comprise 24 jurors, which presumably was necessary to provide their impeachment of the verdict of 12 jurors with some credibility. The proceedings that fell within the scope of the writ of attaint were extended over time to most civil actions. It was never suggested that the writ would lie against jurors who had returned a verdict of guilty upon an indictment, but Bracton and Hale did suggest that it might lie against a jury who had acquitted. In 1670 that possibility was denied by Vaughan CJ in Bushell’s Case.
Over time, the disadvantages caused by the writ of attaint for the administration of justice, not least of which was the discomfort of jurors, led it to fall into disfavour. The writ of attaint ceased to be used in the 17th century.
Jurors were still, however, subjected to punishment for various reasons by Judges during the course of trials, and in particular after they had returned verdicts of not guilty. In the 16th century the Star Chamber assumed some supervision of jury verdicts, and tended to treat any verdict of acquittal which it considered against the weight of evidence as corrupt. After the Restoration, the common law courts continued to assert a right to punish jurors for wrong verdicts. Public opinion, however, was so against the exercise of the power that the courts soon accepted that a jury ought not be exposed to penalties merely because it had found a verdict contrary to the direction of the court or contrary to the evidence.
It is necessary to return briefly to Bushell’s Case. Bushell was one of twelve jurors who persisted in acquitting the Quakers Penn and Mead of unlawful assembly against the directions to convict given by the Justices, including the Mayor of London, who had presided over the trial. For that decision Bushell was imprisoned until he was finally released by an order of the Court of Common Pleas made on a writ of habeas corpus. The reasons given by Vaughan CJ for holding that judges presiding over a jury trial have no power to punish the jury for returning a verdict that does not accord with the judge’s own view derived from his opinion that the jury had exclusive authority to decide disputed questions of fact by a verdict that is effectively inscrutable.
[20] (1670) 124 G.R. 1006.
[21] R v Gbojueh (2009) 103 SASR 545 [40]-[43].
The inviolability of jury verdicts was expressly recognised in the Ordinance which established the Supreme Court of South Australia in 1837. The Supreme Court was established by Ordinance, the Supreme Court Act 1837,[22] on 31 May 1837. In addition to establishing the Supreme Court, s XVI of the same Ordinance provided:
That the Governor for the time being and the Council of the said Province (with the exception of the Advocate-General and Crown Solicitor) shall constitute a Court to be called the Court of Appeals of the Province of South Australia which Court shall have power and authority to receive and hear appeals from the judgments decrees orders and sentences of the said Supreme Court in whole or in part in all cases where the sum or matter in issue shall amount to one hundred pounds and shall or may affirm alter or reverse the said judgment decrees orders or sentences in whole or in part or dismiss the said appeal with costs as may be just: Provided also that upon every appeal to be brought before the said Court of Appeals from any judgment of the Supreme Court founded upon the verdicts of a jury of twelve men the said Court of Appeals shall not reverse alter or inquire into the said judgments except only for error of law apparent upon the record.
[22] 7 Wm IV, No 5.
In Skewes v Veenhuizen,[23] this Court observed that the Court of Appeals never exercised criminal jurisdiction.
[23] (1978) 20 SASR 109 at [126].
The decision of the High Court in The King v Snow,[24] for reasons that I will shortly give, binds this Court to dismiss the Director’s application. Snow was an appeal by the Crown against a judgment of acquittal in the Supreme Court of this State. Before turning to the reasons given in Snow, it is helpful to mention the procedures available in this Court to set aside a verdict at the time Snow was decided.
[24] (1915) 20 CLR 315.
For that purpose it is again convenient to set out a passage from my reasons in Clone:[25]
The Supreme Court Act 1855-6 consolidated the pre-existing ordinances which had established the Supreme Court of South Australia. The Supreme Court was constituted a “Court of Record” and given the jurisdictions of the superior common law courts of England.[26] The Court was also constituted a “Court of Equity” on which was conferred the equitable jurisdiction and associated powers of “the Lord High Chancellor of Great Britain”.[27] The Supreme Court Act 1855-6 made express reference to the two existing Justices of the Court, Cooper CJ and Boothby J, and provided that the jurisdiction of the Court was to be exercised by one or both of them. A third judicial office was created by The Third Judge and District Courts Act 1858.[28]
…
Section 15 of the [Supreme Court Act] 1878 Act provided that motions to vary or set aside verdicts “found by a jury or by a Judge, without a jury” were to be dealt with by the Full Court.[29] Motions to arrest judgment, or to enter a judgment against the verdict, or to reduce damages were to be brought as motions for a new trial. “Full Court” was defined to mean all three judges unless one or more of them were unable to sit.
Section 15 of the 1878 Act further provided that no appeal lay from any judgment founded upon a verdict unless a motion had been taken to set aside or reverse the verdict.[30] The 1878 Act defined judgments to include decrees.
It appears to me that in the case of a judgment based on a verdict, the conferral of an exclusive power on the Full Court by s 15 of the 1878 Act to set aside judgments on a motion for a new trial necessarily removed that power from a single judge. The power of the Full Court, as we have seen, was applicable to both equitable decrees and common law judgments. It is difficult to see how any power could remain in a single judge to review a verdict or judgment on the grounds of new evidence, and perhaps even fraud, in those circumstances.
There was no statutory time limit for bringing a motion for a new trial. The terms of the section suggest that the motion for a new trial could be brought even after the judgment had been entered as was the case in Angas v Cowan.[31] Order 36 of the Rules of Court 1878 made provision for motions for new trials. I have not been able to extract the Rule in its original form but, as of 1905, Order 36 provided that the motion was to be brought within four days after the trial, if the Court was then sitting, or within four days of the commencement of the next sitting or such longer time as may be permitted by order. Order 36 of the 1905 Rules also provided that judgments could only be entered by motion on notice within the time specified by the trial court or four days of the trial if no time had been specified.
In Angas, this Court held that s 15 of the 1878 Act applied to a decree made in proceedings brought in the equity jurisdiction of the Court concerning a disputed charge over property. Accordingly, an appeal did not lie to the Privy Council until such a motion had been brought and lost. Counsel for the respondent submitted that the effect of conferring exclusive jurisdiction on the Full Court to set aside trial verdicts, and any judgments founded upon them, was that the judgments of the trial court were not final unless and until a motion for a new trial had been brought and dismissed.
[25] [2012] SASC 12 at [52], [59]-[63].
[26] Supreme Court Act 1855-6 s 7.
[27] Supreme Court Act 1855-6 s 8.
[28] The third judge was Gwynne J appointed on 26 February 1859. The Third Judge and District Courts Act 1858 was further amended in 1867 by Act No 11 of 1866-7. The Fourth Judge Act 1919 provided for the appointment of a fourth judge to the Court.
[29] The grounds upon which a new trial might have been ordered included a verdict given against the evidence in the sense that “reasonable men ought not have [so] found”; Solomon v Bitton (1881) 8 QBD 176; Metropolitan Railway Co v Wright (1886) 11 App Cas 152; Burns v National Insurance Co of Australasia (1884) 18 SALR 50.
[30] Verdict meant any finding of fact whether made by a judge or a jury. Appeals were prohibited unless such a motion was brought to the Court of Appeals and the Privy Council. See Angas v Cowan (1883) 17 SALR 110.
[31] Angas v Cowan (1883) 17 SALR 110 at 111.
In The King v Snow,[32] Snow was charged on indictment in the Supreme Court of this State for attempting to trade with the enemy contrary to the Trading with the Enemy Act 1914. The trial Judge found no case to answer and directed the jury to return a verdict of not guilty which they did and the accused was discharged. The Crown applied for special leave to appeal to the High Court pursuant to s 73 of the Constitution. Griffiths CJ, Gavin Duffy and Rich JJ held that no effective appeal lay against the judgment of acquittal based on a jury verdict of not guilty pursuant to the provisions of s 73 of the Constitution. Their Honours held that a judgment for the purposes of that constitutional provision included a judgment discharging an accused. However, they held that because an appeal court could not exercise a power that was not available to the court which made the order against which the appeal was brought, s 73 of the Constitution did not confer a power on the High Court to set aside a verdict of not guilty returned by a jury and that therefore no other judgment but one discharging the appellant was possible.
[32] (1915) 20 CLR 315.
Isaacs, Higgins and Powers JJ on the other hand held that s 73 of the Constitution, together with s 36 of the Judiciary Act, as it then stood, did authorise the High Court on an appeal against a judgment of acquittal to set aside the jury verdict and order a new trial.
As is apparent from the summary just given, the whole Court acknowledged and proceeded on the premise that there was no procedure known to the common law by which a judgment discharging an accused on the basis of a not guilty jury verdict could be challenged. Appeals to the Privy Council were put to one side by Griffith CJ because they were in the nature of an exercise of the royal prerogative. Griffiths CJ nonetheless observed that he was not aware of any case in which an appeal had been entertained by the Privy Council from a verdict of not guilty found by a jury.
Griffith CJ also dismissed reliance on the writ of venire de novo explaining that after judgment that writ only corrected error on the face of the record.[33] The writ would also found an order for a new trial in the case of irregular conduct of the jury but only before judgment.[34]
[33] (1915) 20 CLR 315 at 324-325
[34] Archbold 24 edition p 1367.
In submissions for Snow, Sir Josiah Symon KC and Piper KC contended that:
It is a principle of the criminal law as administered in the British Dominions that there is no appeal and no power to grant a new trial, after a verdict of “not guilty” in cases of felony or misdemeanour.
Griffith CJ implicitly referred to that submission and said:[35]
The common law doctrine as to the effect of a verdict of acquittal is too well settled to require exposition, and it is too late to inquire into its origin.
[35] (1915) 20 CLR 315 per Griffiths CJ at 322.
A century has passed since that statement was made and the Director has cited no subsequent authority contradicting it. The development of the law of abuse is not germane to this issue. A decision made by a constituent part of a court may be right or wrong in law but it is not possible to characterise it as an abuse of itself. In any event, general principles addressing for the most part the conduct of litigants cannot by a side wind overrule an entrenched principle of such central importance.
Griffith CJ continued:[36]
The framers of the Constitution, the electors who accepted it, and the Parliament which enacted it, must all be taken to have been aware of the absolute protection afforded by a verdict of not guilty under the common law of all the States …
…
In my opinion, when the proceedings upon an indictment have been concluded by verdict followed by judgment, the Court cannot, under the British system of criminal law, unless expressly authorized by Statute, examine the validity of the proceedings except so far as they appear on the record. No authority was, or indeed could be, cited inconsistent with this view, which I expressed strongly during the hearing of the motion.
[36] (1915) 20 CLR 315 per Griffiths CJ at 323-324.
Isaacs J accepted that new trials in cases of acquittal are contrary to the long established practice of English Courts.[37] The decision of Isaacs J to grant special leave was based on the constitutional change to that position effected by s 73 of the Constitution and the provisions of the Judiciary Act.
[37] (1915) 20 CLR 315 per Isaacs J at 334.
Moreover Isaacs J accepted that it is a characteristic feature of English criminal procedure that it admits of no appeal properly so called. He observed that proceedings in error were available in criminal cases but only for error on the face of the record[38]. Isaacs J noted that before the establishment of the Court of Crown Cases Reserved in 1848 judges who entertained a doubt about the legality of a conviction met informally to consider the case and either did nothing or recommended a pardon.[39] The Crown Cases Act 1848 allowed the trial judge to reserve questions of law for all the judges and barons but only in the case of a conviction.[40] The Court of Crown Cases Reserved was empowered to reverse, affirm or amend the judgment but not the verdict[41].
[38] (1915) 20 CLR 315 per Isaacs J at 349.
[39] (1915) 20 CLR 315 per Isaacs J at 350.
[40] (1915) 20 CLR 315 per Higgins J at 354.
[41] Yeadon’s case LE. & CA., 81 referred to in The King v Snow (1915) 20 CLR 315 at 350-351.
Higgins J too accepted that it had long been the practice of the English courts to treat a verdict of not guilty in a criminal trial as being, in nearly every class of case, conclusive. Judgments of discharge based on verdicts of not guilty had been treated as not being subject to any appeal nor, save for cases of fraud in the proceedings on the part of the accused, to an application for a new trial. Higgins J observed that there was no remedy even when the jury had acted under a mistake made by the judge in directing them as to the law.
The procedure for entertaining a motion for a new trial has long been replaced by appellate review. In civil matters SCR 242 confers a broad power to set aside judgments.[42] No such express power exists on the criminal side. The Director’s application is premised on the existence of an implied power in criminal matters to do that which an express rule is thought necessary on the civil side. Alternatively, it proceeds as if notwithstanding the statutory abrogation of motions for a new trial, and the enactment of the common form criminal appeal provisions, this Court retains a power to similar effect well after the completion of the trial. Moreover, the Director contends that in the time that the power has lain dormant it has shed its common law limitation and now extends to judgments of acquittal based on jury verdict. I reject that submission.
[42] Players Pty Ltd (In Liquidation) v Clone Pty Ltd (2013) 115 SASR 547.
I also observe here that if contrary to my conclusion, the power exists, it would necessarily be exercisable by the Court whether constituted by a single judge or the Full Court. It is, on the Director’s argument, a power of the Court and there is no rule or statutory provision requiring that the application be heard by the Full Court.
The importance of maintaining the finality of judicial decisions was recently emphasised by the High Court in Burrell v The Queen.[43]In the context of the appellate jurisdiction of the New South Wales Court of Criminal Appeal, Gummow A-CJ, Hayne, Heydon, Crennan and Kiefel JJ said:[44]
In the case of each such court, State or federal, attention must be given to the text of the governing statutes and any express or implied powers to be seen therein.
…
Secondly, it is important to recognise that underpinning consideration of the issues presented in this matter are fundamental principles about finality of litigation. As was said in D'Orta‑Ekenaike v Victoria Legal Aid: "A central and pervading tenet of the judicial system is that controversies, once resolved, are not to be reopened except in a few, narrowly defined, circumstances." That tenet finds reflection in rules concerning the bringing of an action to set aside a final judgment on the ground that it was procured by fraud and in doctrines of res judicata and issue estoppel. The principal qualification to the general principle of finality is provided by the appellate system. But in courts other than the court of final resort, the tenet also finds reflection in the restrictions upon reopening of final orders after they have been formally recorded.
…
The formal recording of the orders of a superior court of record is often referred to as the "perfecting" of that order. Whether a court may reopen a proceeding and reconsider the order that has been pronounced is often described as hinging about whether the order has been "perfected". This use of terminology must not be seen as giving form and procedure precedence over substance and principle. The questions that arise in this matter must depend for their answer not upon what forms and solemnities have been observed but upon how effect is to be given to the principle of finality. In particular, what is to mark the point at which a court concludes its consideration of a controversy?
The end of a court's powers to consider and determine a controversy cannot depend upon whether one party asserts that the court has made some error in the conclusion it has reached. …It follows therefore that no matter whether it is a party that alleges error, or it is the court itself which believes that it recognises its own error, a decision that an error had been made could be reached only after giving all parties an opportunity to be heard. And it is this reargument of issues that would constitute the departure from the principle of finality.
Identifying the formal recording of the order of a superior court of record as the point at which that court's power to reconsider the matter is at an end provides a readily ascertainable and easily applied criterion. But more than that, identifying the formal recording of the order as the watershed both marks the end of the litigation in that court, and provides conclusive certainty about what was the end result in that court.
Footnotes omitted
[43] (2008) 238 CLR 218; [2008] HCA 34 at [14] - [27].
[44] (2008) 238 CLR 218; [2008] HCA 34 at [14]-[15], [18]-[20].
I am not persuaded that this Court has any power to set aside the verdicts of not guilty of murder, and as a necessary consequence the convictions of manslaughter, and to order that Zefi and Stakaj be prosecuted again on charges of murder on which judgments of acquittal have been perfected in this Court. Nor does this Court have the power to set aside the verdicts of not guilty of murder returned in favour of Stakaj and HN with the effect that they could be prosecuted for murder on the retrial of the manslaughter charge that I would order.
It remains for me to address the understandable concern that in the absence of the power for which the Director contends orders must stand which on the admissible evidence of the jurors are based on verdicts which were returned by mistake.
I make these observations. First nothing I have said should be understood to limit the power of the jury to correct its verdict before it has dispersed. In R v Cefia[45] this Court held that the power subsisted after discharge of the jury when some, but not all, jurors had left the court room and the Judge had not yet left the bench. However the question of correction of a verdict by the jury is altogether different from correction of a judgment based on its verdict.
[45] (1979) 21 SASR 171.
Secondly I take the view that if there is a need to remedy the law in this respect, only Parliament can do so. This Court should not now abrogate the common law principle of inviolability of judgments of acquittal based on jury verdicts because it is too ancient and protects a liberty which is too important. If Parliament were to see fit to take that course, it might also review the wider context of this application which concerns verdicts more generally.
The effect of s 57(3) of the Juries Act 1927
On the hearing of the appeal much of the argument proceeded on the premise that if the evidence of the mistaken communication of the verdict were received, that evidence established a contravention of s 57(3) of the Juries Act 1927 (the Juries Act). However it is not obvious to me that it is that provision which precludes a jury from returning a verdict of guilty of an alternative offence unless it first returns a verdict of not guilty of the major offence. If there is such an obligation it is sourced in the common law. It is the sequential interrogation, which is a practice of the Court based on the common law, which precludes the return of a verdict of guilty of an alternative offence without the jury first returning a verdict of not guilty of the primary offence.
The manifest purpose of s 57(3) of the Juries Act is to allow a verdict of not guilty of the major offence to be returned, if such a verdict is reached, before the the discharge of the jury if it cannot reach a verdict on the alternative offence. In that way a defendant is not placed in jeopardy of conviction of the major offence on his subsequent trial if the jury on the first trial would have acquitted him of that offence. Section 57(3)(a) of the Juries Act requires only that the jury must first consider whether the accused is guilty of the major offence before considering his or her guilt of the alternative offence. There is no evidence to suggest, nor could there ever be because it goes to the deliberations of the jury, that that requirement was breached.
It follows that reliance on the mandatory terms of s 57(3) of the Juries Act is misplaced. Its mandatory terms are designed to protect an accused from being placed in jeopardy of conviction on multiple occasions by requiring a jury to consider and return a verdict of not guilty on the major offence, if it can, even though it cannot agree a verdict on the alternative. This case does not concern a failure to require the jury to decide whether the accused is not guilty of the major offence before discharging it. This is a case of the foreperson returning a “false” verdict of not guilty of the major offence when the jury had not resolved to return that verdict. The return of the “false” verdict is as much a miscarriage of justice in cases in which s 57 of the Juries Act has no application, because there is no alternative, as it is in a case in which there is an alternative. Section 57(3) of the Juries Act does not speak to this case. The position remains that a miscarriage caused by the return of a “false” verdict can be remedied on an appeal against conviction pursuant to s 353 of the Act but there is no power to set aside a judgment of acquittal.
Conclusion
I would dismiss the Director’s application to set aside the judgments of acquittals of murder of Zefi, Jakaj, Stakaj and HN. It follows that the convictions of manslaughter of Zefi and Jakaj should not be set aside. I would also dismiss the Director’s application brought pursuant to s 350 of the Act. The subject matter of s 350 of the Act is those issues which a trial judge may be called on to determine in the course of a trial and it is those decisions which a judge may reserve for determination by the Full Court. The validity of judgments which finally dispose of criminal proceedings is not a matter for the trial judge.
GRAY and SULAN JJ.
This is an application by the Director of Public Prosecutions to expunge or quash verdicts of acquittal.
The four defendants, David Zefi, Rrok Jakaj, Dario Stakaj and HN, were charged on Information with one count of murder. The Information was in the following terms:
David Zefi, Rrok Jakaj, Dario Stakaj and [HN] on the 4th day of August 2012 at Adelaide, murdered Christopher Trifon Hatzis.
Following a jury trial in the Supreme Court, the trial Judge entered, for each of the four defendants, verdicts of not guilty to the charge of murder and verdicts of guilty to the charge of manslaughter.
On 13 and 14 October 2014 respectively, Stakaj and HN lodged applications for permission to appeal against the convictions of manslaughter.
On 16 January 2015, the Director filed a cross-application seeking that the Court exercise its inherent jurisdiction to expunge or quash all verdicts and order new trials on the Information.
On 5 March 2015, the Director filed a further application, pursuant to section 350(6) of the Criminal Law Consolidation Act 1935 (SA), requesting that the trial Judge refer to the Full Court five questions of law for its consideration and determination. The Director sought, consequent to that application, an order pursuant to section 351A of the Criminal Law Consolidation Act that the judgments of acquittal in respect of the charge of murder be set aside and an order for a new trial on the Information.
In order to succeed in an application to expunge or quash recorded jury verdicts, the Director must first persuade this Court that it has an inherent jurisdiction to hear the application, as the Director has no right of appeal in respect of the verdicts. However, the Court cannot determine this issue without understanding the issue with the verdicts, and to do this the Director must convince the Court to admit evidence of jurors. If the Director is successful in admitting the evidence and the Court determines it has jurisdiction to hear the application, the question becomes whether this Court has a power, inherent or otherwise, to expunge or quash a jury acquittal that has been entered onto the Court record.
Background
The Incident
At about 1.30 am on 4 August 2012, the victim, Christopher Hatzis, and a friend went to Savvy nightclub on Light Square, Adelaide. Before entering the nightclub, Hatzis had left his jacket in a nearby alleyway to avoid a cloakroom fee. Hatzis and his friend were intoxicated before arriving at the nightclub and continued to drink there. Hatzis and another man engaged in a fight inside the nightclub. As a result, both were evicted. Hatzis and his friend left to retrieve the jacket. As they were walking away from the alleyway, two or three individuals approached them. A fight occurred. Hatzis was struck first and the fight escalated. Up to three or four other young men became involved. Hatzis sustained stab wounds which resulted in his death.
The defendants were alleged to have been involved, either by actively attacking the victim, or attacking his friend and holding him at bay. When sentencing, the Judge found that the first defendant, Zefi, introduced the knife to the fight and inflicted the stab wounds. Witnesses gave evidence that Hatzis was being pinned or held while this occurred. The knife used was never found. After the stabbing, there was evidence that HN was seen driving away in a car belonging to Vilson Zefi, the cousin of the first defendent, Zefi. Evidence was adduced that HN had the knife. The prosecution case was that Zefi inflicted the wounds, killing the victim, and that the other three defendants aided and abetted him.
The Judge, when sentencing HN, was not sure whether HN took the knife from the scene, or whether someone handed it to him as he drove the car from the scene along Waymouth Street, before turning against traffic into Light Square. The Judge was, however, satisfied beyond reasonable doubt that HN disposed of the knife. HN’s involvement in assisting to dispose of the evidence supported other circumstantial evidence identifying him as a participant in the fight.
When sentencing the Judge explained that Jakaj, Stakaj and HN were all convicted on the basis that they aided and abetted manslaughter. The jury was directed that the prosecution case alleged actual assistance in the killing of Hatzis, and that they should not convict unless satisfied beyond reasonable doubt that the three were part of the group actually facilitating and assisting Zefi’s actions in inflicting the wounds. The Judge concluded when sentencing the defendants that the extent of involvement of both Stakaj and HN was not easily ascertainable.
The Trial and Verdict Delivery
On 7 August 2014, the defendants were each arraigned on the Information. Each entered pleas of not guilty. The jury was empanelled and the trial commenced.
On 16 September 2014, the Judge commenced summing up, and advised:
You must start with the charge of murder. The Juries Act compels you to start with that offence before turning to the alternative offence of manslaughter. And, again, I have said already, I think, I suggest you start with the case against Zefi, because the cases against the others depend on the case against Zefi.
Now, a verdict of guilty of murder must be unanimous. Any other verdict, including not guilty of murder, can be by majority, that is, 10 or more of you, after four hours of deliberation. But in a case of this nature it is plainly preferable that all verdicts be unanimous and I urge you to work towards that position.
When my associate takes the verdicts from you, whenever that is, she will start with the accused Zefi and work through in the order of the information. She will deal with each accused completely, before moving on to the next one.
The parties provided an agreed statement of facts in respect of the present application. The statement relevantly provides that, on 17 September 2014, the jury retired to consider its verdicts and, on 22 September 2014, the jury returned to deliver its verdicts. At about 2.27 pm, the following exchange occurred:
TRIAL JUDGE: [Foreperson], I understand you have verdicts?
FOREPERSON: Yes, I do.
TRIAL JUDGE: Are they unanimous, or at least any conviction for murder must be unanimous? You do know that, don’t you?
FOREPERSON: Yes, but –
TRIAL JUDGE: But others are majority?
FOREPERSON: Can you please start that again?
TRIAL JUDGE: Take your time. My associate will take them from you. I take it all the verdicts are not unanimous? Is there a majority verdict among the verdicts?
FOREPERSON: Yes, that is correct.
TRIAL JUDGE: My associate will need to know as you go through which are unanimous and which are majority.
FOREPERSON: Yes.
TRIAL JUDGE: Just listen carefully.
FOREPERSON: Sure.
ASSOCIATE: As to the accused David Zefi, are you unanimously agreed upon your verdict as to the charge of murder?
FOREPERSON: No.
ASSOCIATE: As to the charge of murder, and the accused David Zefi, are ten or more of you agreed upon your verdict for a majority verdict of ‘not guilty’?
FOREPERSON: Yes.
TRIAL JUDGE: Not guilty of murder by majority.
FOREPERSON: Yes
ASSOCIATE: As to the charge of murder, do you find the accused David Zefi ‘not guilty’?
FOREPERSON: Yes.
ASSOCIATE: And that is the verdict of ten or more of you?
FOREPERSON: Yes.
ASSOCIATE: Members of the jury, as to the alternative charge of manslaughter, do you find the accused David Zefi ‘guilty’ or ‘not guilty’?
FOREPERSON: Guilty.
ASSOCIATE: And is that the verdict of you all?
FOREPERSON: Yes.
ASSOCIATE: As to the accused Rrok Jakaj, are you unanimously agreed upon your verdict as to the charge of murder?
FOREPERSON: No.
ASSOCIATE: As to the charge of murder, and the accused Rrok Jakaj, are ten or more of you agreed upon your verdict for a majority verdict of ‘not guilty’?
FOREPERSON: Can you please repeat that?
TRIAL JUDGE: You’re now being asked if it’s ‘not guilty’ of murder for Jakaj.
FOREPERSON: Yes
ASSOCIATE: As to the charge of murder, do you find the accused Rrok Jakaj ‘not guilty’?
FOREPERSON: Yes.
ASSOCIATE: And that is the verdict of ten or more of you?
FOREPERSON: Yes.
ASSOCIATE: Members of the jury, as to the alternative charge of manslaughter and the accused Rrok Jakaj, are you unanimously agreed upon your verdict?
FOREPERSON: Yes.
ASSOCIATE: As to the alternative charge of manslaughter, do you find the accused Rrok Jakaj ‘guilty’ or ‘not guilty’?
FOREPERSON: Guilty.
ASSOCIATE: And is that the verdict of you all?
FOREPERSON: Yes.
ASSOCIATE: As to the accused Dario Stakaj, are you unanimously agreed upon your verdict as to the charge of murder?
FOREPERSON: No.
ASSOCIATE: As to the charge of murder, and the accused Dario Stakaj, are ten or more of you agreed upon your verdict for a majority verdict of ‘not guilty’?
FOREPERSON: Yes
ASSOCIATE: As to the charge of murder, do you find the accused Dario Stakaj ‘not guilty’?
FOREPERSON: Yes.
ASSOCIATE: And that is the verdict of ten or more of you?
FOREPERSON: Yes.
ASSOCIATE: Members of the jury, as to the alternative charge of manslaughter and the accused Dario Stakaj, are you unanimously agreed upon your verdict?
FOREPERSON: Yes.
ASSOCIATE: As to the charge of manslaughter, do you find the accused Dario Stakaj ‘guilty’ or ‘not guilty’?
FOREPERSON: Guilty.
ASSOCIATE: And is that the verdict of you all?
FOREPERSON: Yes.
ASSOCIATE: As to the accused [HN], are you unanimously agreed upon your verdict as to the charge of murder?
FOREPERSON: No.
ASSOCIATE: As to the charge of murder and the accused [HN], are ten or more of you agreed upon your verdict for a majority verdict of ‘not guilty’?
FOREPERSON: Yes
ASSOCIATE: As to the charge of murder, do you find the accused [HN] ‘not guilty’?
FOREPERSON: Yes.
ASSOCIATE: And that is the verdict of ten or more of you?
FOREPERSON: Yes.
ASSOCIATE: Members of the jury, as to the alternative charge of manslaughter and the accused [HN], are you unanimously agreed upon your verdict?
FOREPERSON: No.
ASSOCIATE: Are ten or more of you agreed upon your verdict for a majority verdict?
FOREPERSON: Yes.
ASSOCIATE: As to the alternative charge of manslaughter, do you find the accused [HN] ‘guilty’ or ‘not guilty’?
FOREPERSON: Guilty.
ASSOCIATE: And is that the verdict of ten or more of you?
FOREPERSON: Yes.
It was agreed by the parties that while the verdicts were being taken no member of the jury made known to the Court any dissatisfaction with the verdicts as given by the foreperson nor with any of the answers he gave to the questions put to him by the Judge or the Associate as set out above. Consequently, the Judge accepted the verdicts and the Associate endorsed the Information accordingly.
At about 2.34 pm, the Judge discharged the jury. The Judge instructed the Associate to administer the allocutus in respect of each defendant on the charge of manslaughter. At about 2.55 pm, the Judge adjourned the proceedings to a later date for submissions on sentence.
The Issue with the Verdicts
Later that day, 22 September 2014, at about 4.00 pm, the foreperson telephoned the Jury Support Officer from home and advised that he was going to come in to see the Acting Jury Manager, Matthew Moro, regarding an undisclosed issue. At about 4.50 pm, the foreperson met with Mr Moro and, at about 5.10 pm, Mr Moro informed the Acting Sheriff, Steven Ferguson, of an issue in relation to the verdicts.
On the morning of 23 September 2014, Mr Ferguson attempted to contact the trial Judge to seek direction on the issue but the Judge was unavailable. Mr Ferguson subsequently contacted the Chief Justice. The Chief Justice advised that Mr Ferguson should request the foreperson attend Mr Ferguson’s office and provide a signed statement. Between 24 and 26 September 2014, Mr Ferguson met with the foreperson and each of the other jurors and obtained signed statements from them in the form of answers to interrogatories drafted by the trial Judge. On 30 September 2014, the parties were advised of what had occurred.
On 2 October 2014, the matter was called on before the trial Judge for sentencing submissions. At that hearing, the parties were heard in relation to the issue concerning the verdicts. The Judge expressed the preliminary view that she could take no action. Counsel for the Director stated that he would need to take instructions on what the Director wished to do in relation to the issue. However, counsel indicated that he believed that the jury was functus officio and that the trial Judge likely no longer had a residual discretion to try to remedy any defect. Counsel for the Director did not oppose the Judge proceeding to sentence the defendants and the parties made submissions as to sentence. On 7 October 2014, the Judge sentenced the defendants. No submissions were made in relation to the issue concerning the verdicts.
The information contained in the Court’s Record of Proceedings has been entered into the Court’s computer records. After the sentencing of the defendants on 7 October 2014, a Report of a Prisoner Tried was created and printed for each defendant using the information entered into the Court’s computer records. The four Reports of Prisoner Tried have been certified and signed as correct by the Judge and a Clerk of Arraigns.
Inquiry into the Jury’s Verdict
At a directions hearing on 24 November 2014, counsel for the Director submitted that the first step should be the taking of an affidavit from Mr Ferguson, who had spoken to the foreperson. Counsel recognised that there were limits to the admissibility of evidence from jurors. The Court directed that Mr Ferguson and Mr Moro provide affidavits regarding the details of any communications they had had with jurors in respect of the matter. The affidavits were not to include any information identifying the jurors.
At a directions hearing on 11 February 2015, an order was made for the Registrar to obtain affidavits from each of the jurors. The sworn affidavits, which exhibited the statements obtained by Mr Moro and Mr Ferguson, were provided to counsel on 6 March 2015. Confidentiality orders were made.
The Evidence Sought to be Tendered
The Solicitor-General, who appeared for the Director on the present application, sought to tender each affidavit, excluding:
-the final paragraph of the statement of the foreperson exhibited to the affidavit, being the foreperson’s view as to whether the verdicts delivered reflected the view of the jury; and
-each of the remaining jurors’ statements exhibited to their respective affidavits, but admitting part of each juror’s response to question five of that statement.
The sections of the foreperson’s affidavit the Solicitor-General sought to admit provided:
I, ... Juror ... of the August 2014 jury pool, was elected foreperson of the above mentioned trial and delivered the verdict on behalf of the jury on Monday 22 September 2014.
During the giving of the verdict I was asked if the jury were unanimously agreed on a verdict for the charge of murder for each accused, to which I answered “No”.
Following that I was asked if the Jury had a majority verdict of ‘not guilty’ to the charge of murder, to which I responded “Yes” for each accused.
Following on from that, each accused was found guilty to the alternative charge of Manslaughter.
Immediately after leaving the court room I began to feel unsure about the accuracy of the majority not guilty verdicts given and after arriving home I phoned the Sheriff’s Office and asked to come in and speak to the Jury manager to express those concerns.
I met with the Jury Manager at approximately 4.50pm on that same day and stated that it was correct that the Jury could not agree on a unanimous verdict of guilty for the charge of murder, however we did not have a majority verdict of not guilty.
Upon reflection, when asked if the jury had a majority not guilty verdict for the charge of murder, I should have answered “No”.
...
The Solicitor-General sought to admit only part of question five of the remaining jurors’ statements, which provided:
Please advise whether each verdict rendered was correct:
Zefi Not guilty murder – by majority (10 or more)
...
Jakaj Not guilty murder – by majority (10 or more)
...
Stakaj Not guilty murder – by majority (10 or more)
...
[HN] Not guilty murder – by majority (10 or more)
...
The Solicitor-General only sought to admit limited sections of the affidavits that, in his submission, did not concern the deliberations of the jury and could be received by the Court. In the Solicitor-General’s submission, the final paragraph of the foreperson’s statement did intrude into the deliberations of the jury and, in accordance with the common law principle of exclusion, should not be received. Counsel for Stakaj and HN sought to admit the affidavit of the foreperson in its entirety. In respect of the remaining affidavits, counsel sought to admit the jurors’ responses to question five, and further sought to admit the jurors’ responses to one further question on the exhibited statements, question seven, which provided:
The [foreperson] has questioned whether ten or more jurors had in fact decided to acquit each accused of murder, what is your view on each of the following verdict rendered of each accused?
Zefi Not guilty murder – by majority (10 or more)
Guilty manslaughter – unanimous
Jakaj Not guilty murder – by majority (10 or more)
Guilty manslaughter – unanimous
Stakaj Not guilty murder – by majority (10 or more)
Guilty manslaughter – unanimous
[HN] Not guilty murder – by majority (10 or more)
Guilty manslaughter – by majority (10 or more)
...
Counsel for Zefi and Jakaj opposed the admission of the affidavits in their entirety. If, contrary to their primary submission, the material in the affidavits was admissible, then counsel for Zefi contended that the entire affidavit, including those parts the Solicitor-General sought to have excluded, should be admitted. No party raised objection to the Court reviewing the entire affidavit material, with a view to being in a position to rule on the respective contentions.
The Issue Disclosed by the Affidavits
Section 57 of the Juries Act 1927 (SA) provides:
(1)Subject to subsection (2), where a jury, having retired to consider its verdict, has remained in deliberation for at least 4 hours and the jurors have not then reached a unanimous verdict—
(a) if a sufficient number agrees to enable the jury to return a majority verdict—a majority verdict will be returned; but
(b) otherwise—the jury may be discharged from giving a verdict.
(2) No verdict that an accused person is guilty of murder or treason can be returned by majority.
(3) Where an accused person is charged with a particular offence (the major offence) and it is possible for a jury to return a verdict of not guilty of the offence charged but guilty of some other offence for which the person has not been charged (the alternative offence)—
(a) the jury must consider whether the accused is guilty of the major offence before considering whether he or she is guilty of the alternative offence; and
(b) if the jury reaches a verdict (either unanimously or by majority) that the accused is not guilty of the major offence but then, having been in deliberation for at least 4 hours, is unable to reach a verdict on the question of whether the accused is guilty of the alternative offence—
(i) the accused must be acquitted of the major offence; and
(ii) the jury may be discharged from giving a verdict in respect of the alternative offence; and
(iii) fresh proceedings may be taken against the accused on a charge of the alternative offence.
(4) In this section—
majority verdict means—
(a) where the jury, at the time of returning its verdict, consists of 12 jurors—a verdict in which 10 or 11 jurors concur;
(b) where the jury, at the time of returning its verdict, consists of 11 jurors—a verdict in which 10 jurors concur;
(c) where the jury, at the time of returning its verdict, consists of 10 jurors—a verdict in which 9 jurors concur,
and by majority has a corresponding meaning.
By their pleas of not guilty the defendants were to be taken to demand trial by jury.[46] Section 6 of the Juries Act relevantly provides that a criminal trial in the Supreme Court is, subject to that Act, to be by jury.[47] As the High Court made plain in Cheatle, the reference to trial by jury in section 80 of the Australian Constitution is a reference to the common law institution.[48] In Huddart, Parker & Co Pty Ltd v Moorehead, O’Connor J identified the essential features of the institution of trial by jury as:[49]
… the method of trial in which laymen selected by lot ascertain under the guidance of a Judge the truth in questions of fact arising either in a civil litigation or in a criminal process. ...
[46] Maher v The Queen (1987) 163 CLR 221, 229.
[47] Juries Act1927 (SA) section 6(1).
[48] Cheatle v The Queen (1993) 177 CLR 541, 549.
[49] Huddart, Parker & Co Pty Ltd v Moorehead (1909) 8 CLR 330, 375.
The interposition of a body of one’s peers between the State and the State’s ability to interfere with a citizen’s liberty is a critical safeguard in the criminal justice system. The observations of Gleeson CJ and McHugh J in Brownlee are pertinent:[50]
The function of jury trial is not such as to make it essential that the common law rule be preserved in its full rigour. Adopting a functional approach to questions of the validity of State legislation permitting juries of a lesser number than twelve, the Supreme Court of the United States held that such a reduction in numbers was consistent with the corresponding constitutional guarantee. In Williams v Florida White J, delivering the opinion of the Court, said:
“The purpose of the jury trial … is to prevent oppression by the Government … Given this purpose, the essential feature of a jury obviously lies in the interposition between the accused and his accuser of the commonsense judgment of a group of laymen, and in the community participation and shared responsibility that results from that group's determination of guilt or innocence. The performance of this role is not a function of the particular number of the body that makes up the jury. To be sure, the number should probably be large enough to promote group deliberation, free from outside attempts at intimidation, and to provide a fair possibility for obtaining a representative cross-section of the community. But we find little reason to think that these goals are in any meaningful sense less likely to be achieved when the jury numbers six, than when it numbers twelve — particularly if the requirement of unanimity is retained.”
Those observations apply with even greater force to a system which requires twelve jurors to begin with, but permits the trial to continue with ten of the original twelve where two have been discharged, and requires a unanimous verdict of the remaining ten. Such a system is not inconsistent with the purposes of trial by jury. In particular, it is not inconsistent with the objectives of independence, representativeness and randomness of selection, or with the need to maintain the prosecution's obligation to prove its case beyond reasonable doubt.
[Footnotes omitted.]
[50] Brownlee v The Queen (2001) 207 CLR 278, 288-9.
The common law insisted upon unanimity.[51] Further, the verdict had to be that of 12 jurors. So prized was such verdict at common law that if a juror died or was taken ill a fresh jury or a replacement had to be sworn.[52]
[51] Cheatle v The Queen (1993) 177 CLR 541, 550-9; Newell v The King (1936) 55 CLR 707, 713.
[52] Wu v The Queen (1999) 199 CLR 99, 106-7 (Gleeson CJ and Hayne J), 107-8 (McHugh J), 111-12 (Kirby J).
Section 55 of the Juries Act, which addresses the separation of the jury, together with section 56, dealing with continuation with less than the full number of jurors, and section 57, dealing with majority verdicts, are statutory modifications to the common law institution of trial by jury required by section 6 of the Act. Once it is understood that the right to trial by jury is a fundamental common law right and that, in particular, unanimity is an inseparable component of that right, it follows that any statutory abridgement of that right, such as contained in section 57 of the Juries Act, is to be strictly construed.[53] As Latham CJ, Dixon and Evatt JJ agreeing, observed in Newell:[54]
... The right to a jury is one of the fundamental rights of citizenship and not a mere matter of procedure, and so the courts have said. In Looker v. Halcomb, per Best C.J., it is said: “An Act of Parliament which takes away the right of trial by jury, and abridges the liberty of the subject, ought to receive the strictest construction; nothing should be holden to come under its operation that is not expressly within the letter and spirit of the Act”. ...
[Footnotes omitted. Emphasis added.]
[53] Newell v The King (1936) 55 CLR 707, 711-12.
[54] Newell v The King (1936) 55 CLR 707, 711.
Section 57 provides that, in this proceeding, on the charges of murder the jury could not return a majority verdict of guilty, but could, after deliberating for at least 4 hours and having not reached a unanimous verdict, return a majority verdict of not guilty. Further, the jury could not proceed to consider the alternative charge of manslaughter in relation to any of the defendants unless and until it had either unanimously or by majority verdict determined to acquit each particular defendant of murder. In Thomas, Duggan J, with the agreement of Cox and Prior JJ, observed:[55]
... Although s57(3) of the Juries Act 1927 is somewhat awkwardly worded, I think the effect of it must be that an accused must be found not guilty of the offence charged before a verdict can be taken in relation to an alternative offence. As this was not done in the present case the verdict of guilty of larceny from the person must be set aside.
Section 57 has brought about a fundamental change to the processes undertaken by a jury. That change was identified by the High Court in Cheatle:[56]
… the requirement constitutes one of the hallmarks of the common law institution of criminal trial by jury in that there is a significant difference in nature between a deliberative process in which a verdict can be returned only if consensus or agreement is reached by all jurors and a process in which a specified number of jurors can override any dissent and return a majority verdict. The requirement of a unanimous verdict ensures that the representative character and the collective nature of the jury are carried forward into any ultimate verdict. A majority verdict, on the other hand, is analogous to an electoral process in that jurors cast their votes relying on their individual convictions. The necessity of a consensus of all jurors, which flows from the requirement of unanimity, promotes deliberation and provides some insurance that the opinions of each of the jurors will be heard and discussed. Thereby, it reduces the danger of “hasty and unjust verdicts”. In contrast, and though a minimum time might be required to have elapsed before a majority verdict may be returned, such a verdict dispenses with consensus and involves overriding of the views of the dissenting minority.
[Footnotes omitted.]
[55] R v Thomas S5911, SASFC, 11 December 1996, [2].
[56] Cheatlev The Queen (1993) 177 CLR 541, 552-3.
There is no separate or distinct statutory Court of Criminal Appeal in South Australia. There is a Full Court of the Supreme Court, with all its associated jurisdiction and functions.
Having regard to its character as a superior court of record with the powers of the old English courts, the Supreme Court is a court of law and equity and is charged with the general responsibility of the administration of justice in South Australia. It is against this background that a consideration of the scope of the Court’s inherent jurisdiction may be undertaken. Several authorities have cautioned against attempts to address the full range and reach of the Court’s inherent powers.[106] It is preferable to restrict any analysis to the aspects of the proceeding under consideration.
[106] See e.g. Hunter v Chief Constable of West Midlands [1982] AC 529, 536; Assistant Commissioner Condon vPompano (2013) 252 CLR 38, 108.
Submissions on Inherent Jurisdiction
The Solicitor-General submitted that the inherent jurisdiction or inherent powers of the Supreme Court of South Australia, as a superior court of record, enable the Court to protect its legal process. It was said that the inherent jurisdiction goes beyond protection of the Court’s own processes, and allows the Court to protect generally the administration of justice in South Australia. Such a jurisdiction is constitutionally entrenched and comprises a power to protect and maintain the institutional integrity of the Court and to prevent the abuse of its processes.
The Solicitor-General did not seek that the Court recognise an inherent power to set aside jury verdicts of acquittal that have been affected by error. Rather, the Solicitor-General submitted that the Court was empowered to set aside impugned perfected judgments or orders, including acquittals, where the integrity of the judicial process has been unacceptably compromised. The Solicitor-General submitted that the Court’s inherent powers are not limited by whether or not there is recourse available to a party by way of appeal.[107]
[107] Bailey v Marinoff (1971) 125 CLR 529, 532.
The Solicitor-General submitted that the power recognised in the case of a Supreme Court setting aside an impugned verdict is an example of the Court controlling and protecting its legal process and the administration of justice from abuse. It was contended that the categories of abuse of process are not closed. Attention was drawn to the observations of Mason CJ in Rogers:[108]
... The circumstances in which abuse of process may arise are extremely varied and it would be unwise to limit those circumstances to fixed categories. Likewise, it would be a mistake to treat the discussion in judgments of particular circumstances as necessarily confining the concept of abuse of process.
[Footnotes omitted.]
[108] Rogers v The Queen (1994) 181 CLR 251, 255.
In Moti, the Court said the following in respect of abuse of process in criminal proceedings:[109]
... as pointed out in the joint reasons of four members of this Court in Williams v Spautz, two fundamental policy considerations affect abuse of process in criminal proceedings. First, “the public interest in the administration of justice requires that the court protect its ability to function as a court of law by ensuring that its processes are used fairly by State and citizen alike”. Secondly, “unless the court protects its ability so to function in that way, its failure will lead to an erosion of public confidence by reason of concern that the court’s processes may lend themselves to oppression and injustice”. Public confidence in this context refers to the trust reposed constitutionally in the courts to protect the integrity and fairness of their processes. The concept of abuse of process extends to a use of the courts’ processes in a way that is inconsistent with those fundamental requirements.
[Footnotes omitted.]
[109] Moti v The Queen (2011) 245 CLR 456, 478.
Establishing that the verdicts were unlawful is but one step towards a conclusion of abuse of process.[110] However, the Solicitor-General went further and submitted that the abuse of process arises from the Court’s acceptance of the unlawful verdicts on the premise that the answers given by the foreperson were true and accurate. The fact that they were not true and accurate misled the Court in a fundamental respect, with the result that the Court’s orders reflected a purported lawful determination of the matter when a lawful determination did not occur. The Solicitor-General submitted that this abuse of process enlivened the Court’s power to intervene and the Court should exercise its inherent power to expunge the acquittals for murder and order that the defendants be retried on that charge.
[110] See Moti v The Queen (2011) 245 CLR 456, 477.
Counsel for Zefi submitted that the inherent jurisdiction is not a separate and distinct head of power that may be invoked to commence proceedings not otherwise within the jurisdiction of a court.[111] The power, it was said, may only be exercised in proceedings over which the court otherwise has jurisdiction.
[111] Jackson v Sterling Industries Ltd (1987) 162 CLR 612.
Counsel for Zefi contended that, in any event, there had been no abuse of process in these proceedings. Counsel submitted that abuse of process requires identification of some conduct or step in the proceedings; usually, if not always, it will be a step taken by one of the litigants. Counsel submitted that abuse of the Court’s process cannot be equated with an unjust, erroneous or unlawful result. Counsel further drew attention to the strong public interest in finality of litigation and especially in respect of an acquittal by a jury.
Counsel for Jakaj submitted that there has been no abuse of process as the error of the jury did not compromise the integrity of the Court. Counsel submitted, in the alternative, that if the integrity of the Court had been so compromised, the Court’s inherent jurisdiction does not extend to, nor permit, the setting aside of a verdict returned by a jury. A verdict of acquittal is sacrosanct and the Court has no power to set such a verdict aside.
Counsel for Stakaj submitted that there was a lack of direct authority to support the contention of the Director. Counsel submitted that the Solicitor-General was seeking to rely on inherent jurisdiction to protect processes in the “civil arena”, as a means of seeking a broader and more flexible jurisdiction to intervene. Cefia[112] was put by counsel as marking out the breadth of the jurisdiction to intervene on a jury acquittal infected with error. Counsel submitted that the Court has no broader inherent jurisdiction beyond this.
[112] R v Cefia (1979) 21 SASR 171.
On the issue of verdicts delivered contrary to section 57 of the Juries Act, it was accepted that such verdicts would not survive an appeal but counsel submitted that this would only be the case where a right of appeal already exists. It is contended that Biggs[113] is authority that such verdicts will stand absent a right of appeal.
[113] Biggs v Director of Public Prosecutions (1997) 17 WAR 534.
Discussion on Inherent Jurisdiction
In our view, the Court has an inherent jurisdiction that operates as a separate head of power. This is made clear in Grassby[114] in the paragraphs extracted above. Once this is accepted, it is necessary to consider whether the unlawful verdicts give rise to an abuse of process that allows the Court to hear the matter in its inherent jurisdiction. In our view, the submissions of the Solicitor-General should be accepted. The verdicts delivered were unlawful and, if the Court were to accept the unlawful verdicts, it would fundamentally erode public confidence in the Court’s administration of the criminal justice system. The Court’s role is to properly administer the processes in criminal proceedings that give rise to the determination of conviction or acquittal.
[114] Grassby v The Queen (1989) 168 CLR 1.
Further, if we were to accept the submissions of counsel for Zefi that one must point to some conduct in the proceedings giving rise to the abuse, that conduct would necessarily be the foreperson’s mistake in the responses to the questions of the Associate, and the unanimous mistake made by the jury in acquiescing to those responses at the time of the delivery of the verdicts.
Remedy
The question that now arises is whether the Court has power to grant the remedy sought by the Solicitor-General. A verdict of acquittal by a jury has long been considered as sacrosanct. Counsel for the defendants generally submitted that it is a fundamental principle of the common law that a verdict of acquittal returned by a jury in a trial conducted by a competent court is final and conclusive, whether or not the verdict of not guilty is tainted by irregularity or mistake.[115]
[115] The King v Snow (1915) 20 CLR 315, 363-5.
Inherent Jurisdiction and Inherent Power
In determining whether the Court may grant the remedy sought, it is necessary to examine the nature of inherent power as distinct from inherent jurisdiction.
In the context of invoking inherent jurisdiction to halt arbitration proceedings following inordinate delay, Lord Diplock observed in Bremer Vulkan Schiffbau und Maschinenfabrik v South India Shipping Corp Ltd that:[116]
The power to dismiss a pending action for want of prosecution in cases where to allow the action to continue would involve a substantial risk that justice could not be done is thus properly described as an “inherent power” the exercise of which is within the “inherent jurisdiction” of the High Court. It would I think be conducive to legal clarity if the use of these two expressions were confined to the doing by the court of acts which it needs must [sic] have power to do in order to maintain its character as a court of justice.
[Emphasis added.]
In Connelly v Director of Public Prosecutions, Lord Morris of Borth-y-Gest said:[117]
There can be no doubt that a court which is endowed with a particular jurisdiction has powers which are necessary to enable it to act effectively within such jurisdiction. I would regard them as powers which are inherent in its jurisdiction. A court must enjoy such powers in order to enforce its rules of practice and to suppress any abuses of its process and to defeat any attempted thwarting of its process.
[Emphasis added.]
[116] Bremer Vulkan Schiffbau und Maschinenfabrik v South India Shipping Corp Ltd [1981] AC 909, 977.
[117] Connelly v Director of Public Prosecutions [1964] AC 1254, 1301.
In Jackson v Sterling Industries Ltd, Toohey J adopted the statement of Menzies J in Forbes; Ex Parte Bevan[118] and said that inherent jurisdiction is “the power which a court has simply because it is a court of a particular description”.[119] Toohey J further observed:[120]
... The notion of inherent jurisdiction is in any event capable of misleading for, when examined, it is invariably concerned with the power of a particular court to act in a particular way ...
[Emphasis added.]
In that case, Wilson and Dawson JJ categorised the exercise of the Federal Court granting a Mareva injunction as that of a power also, describing it as an “inherent or, more correctly, implied power”.[121]
[118] Forbes; Ex Parte Bevan (1972) 127 CLR 1.
[119] Jackson v Sterling Industries Ltd (1987) 162 CLR 612, 630.
[120] Jackson v Sterling IndustriesLtd (1987) 162 CLR 612, 630.
[121] Jackson v Sterling IndustriesLtd (1987) 162 CLR 612, 618.
The distinction between categorisation as inherent jurisdiction or inherent power is material in this case. In Batistatos v Newcastle City Council,[122] the High Court expressly warned against approaching the distinction in an unsubtle and unsophisticated way. The plurality stated:[123]
These appeals concern abuse of process as understood in the exercise of the “inherent jurisdiction” of superior courts to stay proceedings. The phrase “inherent jurisdiction” itself is a slippery one. In Australian Securities and Investments Commission v Edensor Nominees Pty Ltd, Gleeson CJ, Gaudron and Gummow JJ remarked:
“Jurisdiction” and “power” are not discrete concepts. The term “inherent jurisdiction” may be used, for example in relation to the granting of stays for abuse of process, to describe what in truth is the power of a court to make orders of a particular description. In Harris v Caladine, Toohey J said: “The distinction between jurisdiction and power is often blurred, particularly in the context of ‘inherent jurisdiction’. But the distinction may at times be important. Jurisdiction is the authority which a court has to decide the range of matters that can be litigated before it; in the exercise of that jurisdiction a court has powers expressly or impliedly conferred by the legislation governing the court and ‘such powers as are incidental and necessary to the exercise of the jurisdiction or the powers so conferred”.’”
...
[Footnotes omitted.]
[122] Batistatos v Newcastle City Council (2006) 226 CLR 256.
[123] Batistatos v Newcastle City Council (2006) 226 CLR 256, 263 (Gleeson CJ, Gummow, Hayne and Crennan JJ).
Kirby J spoke of the need for caution when exercising inherent jurisdiction, and when considering the distinction between inherent jurisdiction and inherent power.[124]
[124] Batistatos v Newcastle City Council (2006) 226 CLR 256, 297.
Inherent jurisdiction may be described as the “authority which a court has to decide the range of matters that can be litigated before it”,[125] while inherent power, expressly or impliedly given by the legislation governing the court, involves “such powers as are incidental and necessary to the exercise of the jurisdiction or the powers so conferred”.[126]
[125] Harris v Caladine (1991) 172 CLR 84, 136 (Toohey J).
[126] Harris v Caladine (1991) 172 CLR 84, 136, citing Parsons v Martin (1984) 5 FCR 235, 241.
The Supreme Court of New Zealand has recognised the imprecision inherent in the terminology of inherent jurisdiction and inherent power. In Zaoui v Attorney General, the Court observed:[127]
... confusion may arise [where] the term “inherent jurisdiction” is applied both to substantive and procedural powers ... Courts which do not possess an inherent substantive jurisdiction (as is the case where their substantive powers are entirely statutory) nevertheless have inherent or implied procedural powers necessary to enable them to give effect to their statutory substantive jurisdiction.
In our view, what is now sought to be exercised is the power of this Court to control the proceedings associated with the delivery of a jury verdict. This power is integral to the administration of criminal justice.
[127] Zaoui v Attorney General [2005] 1 NZLR 577, 644.
Finality and Functus Officio
Counsel for the defendants generally contended that the judgment of the trial Court, being the jury acquittals on murder and the convictions for manslaughter, had been entered into the records of the Court and thereby perfected. It was submitted that the finality rule prohibits this Court from granting the remedy sought by the Director.
In Bailey v Marinoff, the High Court stated that “[i]t is a well‑settled rule that once an order of a court has been passed and entered or otherwise perfected in a form which correctly expresses the intention with which it was made the court has no jurisdiction to alter it”.[128] Earlier, in Cameron v Cole, the High Court had stated that “a court which, after a real trial, has given a valid decision determinative of right, liability or status, has no jurisdiction to recall it whatever mistakes may have been made in facts or law”.[129]
[128] Bailey v Marinoff (1971) 125 CLR 529, 539.
[129] Cameron v Cole (1944) 68 CLR 571, 590.
In Burrell,[130] the Court of Criminal Appeal of New South Wales delivered judgment and made orders reflecting its judgment. Those orders were entered in the Court records. Shortly thereafter, the Court realised that it had proceeded on an incorrect understanding of the facts giving rise to the appeal. The Court held that it had power to reopen the appeal and, after reconsideration, ordered that its previous orders should be confirmed.
[130] Burrell v The Queen (2008) 238 CLR 218.
On appeal, Gummow ACJ, Hayne, Heydon, Crennan and Kiefel JJ, determined that the Court of Criminal Appeal did not have the power to reopen and reconsider the appeals after its first orders had been formally recorded. The appeal was allowed and the proceeding remitted for further consideration.
In the course of their judgment, the plurality observed:[131]
Secondly, it is important to recognise the underpinning consideration of the issues presented in this matter are fundamental principles about finality of litigation. As was said in D’Orta-Ekenaike v Victoria Legal Aid: “A central and pervading tenet of the judicial system is that controversies, once resolved, are not to be reopened except in a few, narrowly defined, circumstances.” That tenet finds reflection in rules concerning the bringing of an action to set aside a final judgment on the ground that it was procured by fraud and in doctrines of res judicata and issue estoppels. The principal qualification to the general principle of finality is provided by the appellate system. But in courts other than the court of final resort, the tenet also finds reflection in the restrictions upon reopening of final orders after they have been formally recorded.
The third consideration of principle which it is necessary to state at the outset is related to the second. It is that the principle of finality serves not only to protect parties to litigation from attempts to re-agitate what has been decided, but also has wider purposes. In particular, the principle of finality serves as the sharpest spur to all participants in the judicial process, judges, parties and lawyers alike, to get it right the first time. Later correction of error is not always possible. If it is possible, it is often difficult and time-consuming, and it is almost always costly.
[Footnotes omitted.]
[131] Burrell v The Queen (2008) 238 CLR 218, 223.
Counsel for the defendants generally submitted that it is not open to the Full Court to reopen the proceeding, reconsider the question of what orders should be made and then alter the judgment.
However, the Court has long recognised a power to cure errors in orders that have been formally entered into the Court record. In Burrell, Kirby J agreed with the orders proposed by the plurality. In the course of his reasons, he observed:[132]
... Exceptional powers to cure errors and injustices have certainly been acknowledged by courts, including this Court, even where the formal order of a court has been duly entered or “perfected”. Just as in the law, we can love truth, like all other good things, unwisely; pursue it too keenly; and be willing to pay for it too high a price, so we can also love finality too much. In our understandable concern to secure finality to litigation, we can fall into the error of allowing that value to swamp all other concerns that rightly agitate the courts. Such may sometimes be the case where we are asked to uphold a formal order of a superior court as “final” and unarguable, simply because it was “entered” by a mechanical, unconsidered step of non-judicial officials and although, promptly, it might be demonstrated that the entered order works an injustice which may otherwise not be capable of effective, speedy or economical repair by the normal operations of the court system.
[Footnotes omitted. Emphasis added.]
[132] Burrell v The Queen (2008) 238 CLR 218, 236-7.
As referred to above, the Supreme Court of Canada had regard to the finality principle in Pan, stating:[133]
... That rationale is more abstract, and inevitably invites the question of why the finality of a verdict should prevail over its integrity in cases where that integrity is seriously put in issue. ...
[133] R v Pan [2001] 2 SCR 344, 374.
In Connelly,[134] the primary issue considered by the House of Lords was whether, after an acquittal of murder arising out of a robbery, the Crown could then proceed with the charge of robbery. The defendant had been charged with murder alone, the practice being that on a charge of murder no other charge was included on the indictment. Lord Devlin observed:[135]
There is another factor to be considered, and that is the courts’ duty to conduct their proceedings so as to command the respect and confidence of the public. For this purpose it is absolutely necessary that issues of fact that are substantially the same should, whenever practicable, be tried by the same tribunal and at the same time. Human judgment is not infallible. Two judges or two juries may reach different conclusions on the same evidence, and it would not be possible to say that one is nearer than the other to the correct. Apart from human fallibility the differences may be accounted for by differences in the evidence. No system of justice can guarantee that every judgment is right, but it can and should do its best to secure that there are not conflicting judgments in the same matter. Suppose that in the present case the appellant had first been acquitted of robbery and then convicted of murder. Inevitably doubts would be felt about the soundness of the conviction. That is why every system of justice is bound to insist upon the finality of the judgment arrived at by a due process of law. It is quite inconsistent with that principle that the Crown should be entitled to re-open again and again what is in effect the same matter.
[134] Connelly v Director of Public Prosecutions [1964] AC 1254.
[135] Connelly v Director of Public Prosecutions [1964] AC 1254, 1353.
Keith Mason QC, in an academic commentary on Lord Devlin’s observations, observed that it is “well recognised that courts have an inherent power to recall or amend judgments in certain cases where the public interest in finality is overridden by the public interest in achieving a fair result”.[136] As observed by Lord Devlin, the finality of a judgment is to be insisted upon if it is “arrived at by due process of the law”.
[136] Keith Mason AC QC, ‘The Inherent Jurisdiction of the Court’ (1983) 57 The Australian Law Journal 449, 450.
In these proceedings, the requirements of section 57 of the Juries Act have not been complied with. It follows that the orders of the Court have not been arrived at by due process of the law.[137] This is not a case of reviewing a decision in which the orders have been finalised and perfected. As a consequence of the non-compliance with section 57 of the Juries Act, a valid verdict or determination has not been made in this case. The orders entered in the Court record did not reflect the determination of the Court, in this case of the jury. Consequently, the Court, prima facie, has an inherent power to recall the order.
[137] R v Nakhla(No 2) [1974] 1 NZLR 453, 455. See also Rosara Joseph, ‘Inherent Jurisdiction and Inherent Powers in New Zealand’ (2005) 11 Canterbury Law Review 220, 226.
Acquittal by Jury
Counsel for Zefi and Jakaj relied on Snow[138] to support the contention that a jury acquittal is sacrosanct. Counsel for Jakaj submitted that section 6(1) of the Juries Act is drafted in terms “materially indistinguishable” from section 80 of the Constitution, under consideration in Snow. The acquittals in the present proceeding are, it was argued, therefore final and conclusive, and beyond the power of this Court to overturn. Counsel contended that the common law recognised that a jury acquittal could not be set aside by a trial judge, or challenged by any process of appeal or judicial review, nor simply ignored by launching a second prosecution.[139]
[138] The King v Snow (1915) 20 CLR 315.
[139] The King v Snow (1915) 45 CLR 315; R v JS (2007) 203 FLR 276, 306.
The difficulty confronting this argument is that there have been no valid acquittals. The acquittals entered onto the Court record were not arrived at by due process of the law. No valid verdicts of acquittal were reached at all. The verdicts returned were in noncompliance of the mandatory terms of section 57. The orders of the Court were made following invalid verdicts.
Conclusion
The inherent jurisdiction of the Court is not restricted to closed and defined categories. As a superior court of record, the Court has an inherent jurisdiction to review an order entered that is infected by error and, in particular, is noncompliant with the mandatory requirements of section 57 of the Juries Act.
Inherent powers are incidental or ancillary to a substantive jurisdiction. Regulation of procedure and protection of process arising within this substantive jurisdiction enables a court to give effect to this jurisdiction. The erroneous jury verdicts delivered are the subject of challenge. What is found in this case is not a jurisdiction, inherent or otherwise, to overturn jury acquittals entered by a court, but the power of the Court to ensure that jury verdicts are delivered in compliance with the statutorily mandated legal provisions.
The issue of the defendants receiving the full benefit of jury acquittals is not to the point, as there have been no valid jury acquittals. In our view, controlling and correcting this invalid determination is a proper exercise of the Court’s power to preserve and protect procedures that have, as their ultimate consequence, periods of imprisonment or acquittal. The powers relating to protection of abuse of process extend to “precluding the undermining of confidence in courts generally”.[140] Allowing a verdict which was arrived at other than by strict compliance with mandated legal requirements would undermine this confidence.
[140] Director of Public Prosecutions v Shirvanian (1998) 44 NSWLR 129, 134.
For completeness, we note that it is unnecessary to decide the Director’s application pursuant to section 351A of the Criminal Law Consolidation Act as we have found that the Court does have an inherent power, within its inherent jurisdiction, to overturn the verdicts of acquittal and order a retrial. We note, however, that it is unlikely that Parliament wished to confer such a power on the Court by virtue of that legislation.
We note that, since preparing these reasons, the High Court delivered its decision in Smith v The Queen,[141] addressing an appeal against conviction on grounds of procedural fairness. In Smith, jury deliberations and interim voting patterns were disclosed to the trial Judge prior to the jury reaching its verdict. Counsel for the defendant contended that the trial Judge should have disclosed those interim votes and voting patterns to counsel. Notably, Smith does not state that a Court cannot go behind a jury verdict. In our view, nothing in Gordon J’s reasons effects our conclusion. In the present proceeding, the impugned verdict was flawed. The jury did not reach a verdict of acquittal in relation to the charge of murder. Further, the evidence we have allowed the Solicitor-General to adduce does not disclose interim voting patterns or deliberations.
[141] Smith v The Queen [2015] HCA 27.
For these reasons, we order that the verdicts of not guilty of murder recorded in the case of each defendant be quashed. We order that, in respect of each defendant, the conviction of manslaughter be quashed and their sentences be set aside. We order that, in the case of each defendant, there be a retrial on the charge of murder.
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