R v Stakaj & N, H

Case [2015] SASCFC 139

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
Case
[2015] SASCFC 139
Decision Date

CaseChat Overview and Summary

This matter concerned an application by the Director of Public Prosecutions to expunge or quash jury verdicts of acquittal for murder, and consequently set aside convictions for manslaughter, entered against the defendants David Zefi, Rrok Jakaj, Dario Stakaj, and HN. The defendants were charged with murder following a fatal stabbing incident outside a nightclub. Following a jury trial, the trial judge entered verdicts of not guilty of murder and guilty of manslaughter for each defendant. The Director sought to tender affidavits from the jurors, including the foreperson, to demonstrate that the majority verdicts of not guilty of murder were erroneously returned, arguing that the jury had not in fact reached a majority decision to acquit on that charge.

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

Full text does not contain this section.

Background

Background to the litigation

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. BackgroundThe 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

Evidence

Evidence Before The Court

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 – unanimousJakaj Not guilty murder – by majority (10 or more)Guilty manslaughter – unanimousStakaj 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)...

Decision

Reasons for decision

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 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.

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.