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…
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- R v Stakaj & N, H [2015] SASCFC 139
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- [2015] SASCFC 139
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CaseChat Overview and Summary
The central legal issues before the Court were whether it possessed the inherent jurisdiction to hear an application to expunge or quash recorded jury verdicts, particularly acquittals, and if so, whether the evidence of the jurors could be admitted to establish that the verdicts were erroneously returned. The Court was required to consider the fundamental common law right to trial by jury, the strict construction of statutory modifications to this right, such as majority verdicts under section 57 of the Juries Act 1927 (SA), and the distinction between a miscarriage of justice caused by a "false" verdict and the inability to set aside a judgment of acquittal.
The Court reasoned that while the right to trial by jury, including unanimity, is a fundamental common law right, section 57 of the Juries Act permits majority verdicts of not guilty in certain circumstances. However, the Court found that the Director's application did not concern a failure to comply with the procedural requirements of section 57, but rather alleged that a "false" verdict of acquittal was returned when the jury had not resolved to do so. The Court held that while a miscarriage of justice caused by a false verdict could be remedied on an appeal against conviction, there is no power to set aside a judgment of acquittal.
Consequently, the Court dismissed the Director's application to set aside the judgments of acquittal for murder and the subsequent convictions for manslaughter. The Court also dismissed a further application by the Director pursuant to section 350 of the Criminal Law Consolidation Act 1935 (SA) to refer questions of law to the Full Court, finding that the validity of judgments that finally dispose of criminal proceedings is not a matter for a trial judge to reserve.
Orders
Orders of the court
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Background
Background to the litigation
Evidence
Evidence Before The Court
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
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.