R v Stakaj; R v N, H
[2017] SASCFC 120
•22 September 2017
SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v STAKAJ; R v N, H
[2017] SASCFC 120
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Blue and The Honourable Justice Lovell)
22 September 2017
CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE - TEST TO BE APPLIED
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MURDER - EVIDENCE - BURDEN OF PROOF
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MURDER - EVIDENCE - CIRCUMSTANTIAL EVIDENCE
Appeal against conviction.
The appellants appeal against their convictions for manslaughter on the ground that the verdict is unreasonable and cannot be supported by the evidence.
The appellants were found guilty of manslaughter based on their involvement in a fight in Light Square during the final stage of which Christopher Hatzis was stabbed multiple times. At the hearing of the appeal, it was accepted that David Zefi stabbed Mr Hatzis and that he was assisted by another man. The prosecution case against the appellants alleged only that the appellants aided and abetted David Zefi by pushing, striking or holding Mr Hatzis or his companion during the fight immediately prior to the stabbing (the final assault).
The prosecution case against Mr Stakaj, the first appellant, relied on a witness who identified an ‘ethnic’ man wearing a white hooded top that took part in the final assault and then ran past the witness. Mr Stakaj was wearing a white hooded top of a similar description on that night. The prosecution also relied on other circumstantial evidence to assert that the jury could be satisfied beyond reasonable doubt that the man that the witness identified was Mr Stakaj. It was also alleged that Mr Stakaj stood next to a car being driven by HN, the second appellant, and handed him a knife. However, there was no direct evidence that Mr Stakaj held a knife at any time.
The prosecution case against HN, the second appellant, relied on evidence that he ran into Light Square approximately two minutes before the stabbing occurred. Other evidence suggested that HN did no more than stand at the periphery of Light Square and showed that HN fled Light Square 30 seconds before David Zefi. A witness who was in the car that HN drove home after the fight took place suggested that she saw him clean a wooden handled object, which may have been a knife. The handling of that object was relied on to show that HN was part of the final assault leading to the stabbing of Mr Hatzis and that he carried the knife away from the stabbing. This conflicted with the prosecution’s suggestion that Mr Stakaj may have handed HN the knife. The evidence also showed that HN showered upon returning home and expressed concern about blood on his shoes. The police did not find any blood stains on HN’s shoes.
Held by the Court, allowing the appeals:
1. The evidence relating to the wooden handled object held by HN was uncertain and unsupported by any other evidence. The probative value of the evidence that either Mr Stakaj or HN took the knife away from the fight is reduced by the prosecution’s reliance on two contradictory hypothetical situations (at [98]).
2. The prosecution proved no more than that Mr Stakaj was present in Light Square immediately before the final assault but not that he took part in it (at [100]).
3. The prosecution proved no more than that HN was in Light Square but not that he took part in the final assault which led to the stabbing (at [101], [108]).
4. Convictions of manslaughter for both appellants quashed. Orders of acquittal made for both appellants (at [111], [112]).
R v STAKAJ; R v N, H
[2017] SASCFC 120Court of Criminal Appeal: Kourakis CJ, Blue and Lovell JJ
THE COURT: The appellants, Dario Stakaj and HN, a youth, appeal against their convictions for manslaughter on the ground that the verdicts are unreasonable and cannot be supported having regard to the evidence. Mr Stakaj also appeals on other grounds but, for reasons which appear below, they do not need to be determined.
It is an accepted fact on the appeals that the perpetrator of the offence was David Zefi, who killed Christopher Hatzis by stabbing him on multiple occasions to his chest and abdomen. It is also common ground that David Zefi was assisted by Rrok Jakaj who struck Mr Hatzis’ companion, David Russo, with a belt buckle in the fight which culminated in the stabbing.
The prosecution case against Mr Stakaj and HN is that they aided and abetted David Zefi by pushing, striking or holding either Mr Hatzis or Mr Russo as part of a throng of men who had surrounded them shortly before the stabbing. It was not the prosecution case that either of Mr Stakaj or HN facilitated the manslaughter of Mr Hatzis by offering in advance to help David Zefi or Mr Jakaj make an escape, or to dispose of any weapon they used. Nor was it the prosecution case that they assisted from afar by shouting words of encouragement or gesturing.
The stabbing of Mr Hatzis took place on the eastern footpath of Morphett Street as it runs north-south just east of Light Square (the eastern footpath). Moving northwards from the Waymouth Street junction with Light Square the buildings which stand along the eastern footpath are:
·the Tindall Gask Bentley (TGB) building;
·the URS building, and
·the People’s Choice Credit Union (the Credit Union) building.
An unnamed lane (the unnamed lane) runs west/east between the TGB and URS buildings. The URS and Credit Union buildings are separated by Playhouse Lane. The three buildings together have a frontage of about 100 metres to Morphett Street. The midpoint of the URS building is about 45 metres north of the southern edge of the TGB building.
The stabbing occurred on the eastern footpath in front of the Credit Union building, just north of the midpoint of that building. It was preceded by fighting between Mr Hatzis and a growing group of men which started in front of the URS building and proceeded in a northerly direction down the eastern footpath, as Mr Hatzis and Mr Russo retreated. We will refer to the fighting in front of the URS building immediately preceding the stabbing as the final assault.
The primary plank of the prosecution case against Mr Stakaj was the testimony of Mikaela Tyas, who was sitting on the steps of the URS building and saw a man of ‘ethnic’ appearance wearing a white ‘hoodie’ who she said took part in the final assault and then ran past her and away from the fight. Mr Stakaj was wearing a white hooded top (hoodie) of the general kind described by Ms Tyas. The prosecution case was that notwithstanding the quite general description given by Ms Tyas the jury could be satisfied beyond reasonable doubt that that offender she saw was Mr Stakaj because:
·he knew David Zefi or at least some of David Zefi’s acquaintances;
·he had run into Light Square from Waymouth Street just minutes before the stabbing;
·shortly before running into Light Square he had gestured to HN who soon thereafter also ran into Light Square;
·later that night he attempted to hide a mark on his hoodie when some friends questioned him about it and suggested it was blood; and
·after the incident he spoke to others in a way which implied that he had been involved in the fight with Christopher Hatzis.
The prosecution also relied on evidence that Mr Stakaj stood next to a car driven by HN which was parked in Light Square shortly before HN was seen by another occupant of the car to handle an object which looked like a knife. However, Mr Stakaj was never personally seen to hold a knife and that part of the prosecution case was largely speculative. CCTV footage of Mr Stakaj’s approach to the car did not show him holding a knife. When HN testified in his own defence it was not put to him that Mr Stakaj had handed him a knife. There was no other evidence linking Mr Stakaj to the object.
The conviction of Mr Stakaj cannot be sustained. The prosecution proved no more than that he was present in Light Square and was actively interested in the events which were occurring there. The evidence does not exclude the possibility that the offender wearing the hoodie was someone other than Mr Stakaj. The evidence does not prove beyond reasonable doubt that Mr Stakaj aided and abetted the manslaughter of Mr Hatzis.
The prosecution case against HN was primarily that he ran into Light Square about two minutes before the stabbing occurred. However, the evidence also established that he left Light Square about 30 seconds before David Zefi left it. There was no direct evidence that he was part of the final assault on Mr Hatzis. The prosecution case also relied on the evidence that HN was seen in a car minutes later with a wooden handled object which may have been a knife. It is contended that his possession of the knife circumstantially proves that he was part of the final assault on Mr Hatzis because a person in that throng is more likely to have been in a position to take possession of the knife than someone who was further away. However that circumstantial link to the offending is tenuous because:
·HN left Light Square before the perpetrator David Zefi; and
·it was part of the prosecution case against Mr Stakaj that he may have handed the knife to HN.
The prosecution also rely on the fact that HN showered and changed clothes after the incident and expressed some concern to a young female companion that police might find traces of blood on his shoes. His shoes were seized and examined but no blood like staining was seen. The evidence that HN took a shower later that night raises no more than a suspicion of his participation in the final assault. HN’s concern that there may be blood staining on his shoes is of greater probative value. However it will be seen that there are possible innocent explanations for HN’s behaviour.
The prosecution evidence does not prove beyond reasonable doubt that HN aided and abetted the manslaughter of Mr Hatzis. HN’s conviction for manslaughter cannot be sustained.
An elaboration of our reasons follow.
The Evidence
The reasons for the attack on Mr Hatzis can be traced to a fight in the early hours of Saturday 4 August 2012 in the nearby Waymouth Street nightclub called Savvy. Savvy is situated on the southern side of Waymouth Street near its junction with Light Square. To the east of Savvy is the YHA building. Closed circuit television (CCTV) cameras are situated on the exterior of both the Savvy and YHA buildings.
At about 1:30 am Mr Russo and Mr Hatzis arrived at the Savvy after walking from the London Tavern on North Terrace. Both were intoxicated. Mr Russo testified that before joining the queue at Savvy, Mr Hatzis hid his jacket away in the unnamed lane claiming that he wanted to avoid paying for it to be stored in the cloakroom inside Savvy. He insisted on doing so even after Mr Russo offered to pay the fee. The defence case was that Mr Hatzis had a weapon concealed in his jacket which he feared would be discovered by a metal detector used by Savvy to screen its guests. As it transpired, there was no cloakroom at Savvy and not all guests were screened on that night.
Inside Savvy, Mr Hatzis got into a fight with another man, K, on the dance floor which resulted in both Mr Russo and Mr Hatzis being evicted from the nightclub. CCTV footage shows that Mr Hatzis was escorted into the foyer area of Savvy at 2:19:41 am. David Zefi, Mr Jakaj, HN and David Zefi’s cousin, Vilson Zefi, were in the foyer at the same time. At 2:20:48 am, David Zefi engaged in a conversation with Mr Hatzis which became so heated that Vilson Zefi intervened to hold his cousin back.
Mr Hatzis finally left Savvy at 2:22:37 am. At 2:22:54 am he and Mr Russo walked across Waymouth Street in a northerly direction. At 2:23:04 am, HN, Vilson Zefi and Mr Jakaj left Savvy followed by David Zefi at 2:24:45 am.
At 2:24:59 am Vilson Zefi and a woman, CZ, are shown on CCTV footage walking north across Waymouth Street and out of view of the CCTV camera on the YHA building. David Zefi testified that he followed Vilson Zefi and CZ into Light Square as part of an arrangement he had made to spend the night with CZ at a hotel room. He was keeping that arrangement secret from another woman, who was also at Savvy that night. According to David Zefi, he walked to CZ’s Yaris which was parked in a [90 degree] car park on the eastern kerb of Morphett Street outside the Credit Union building. He got into the car with her. Vilson Zefi remained in Light Square.
At about the time that HN, David Zefi and their friends were departing Savvy, CCTV footage shows that Mr Hatzis ran down Playhouse Lane between 2:24:59 am and 2:25:54 am wearing a t-shirt and that when he returned to Light Square he was still wearing a t-shirt. On entering and exiting Playhouse Lane he did not have his jacket with him and did not appear to have anything in his hands. If Mr Hatzis’ jacket was hidden in Playhouse Lane, he returned without it on that occasion. For reasons that will appear shortly, it is likely that his jacket was actually left, as Mr Russo testified, down the unnamed lane.
The witness Samantha Smith testified that sometime after 2am she was on the front porch of the URS building with several friends including another witness Mikaela Tyas. She saw two men, whom she later learnt were Mr Hatzis and Mr Russo, walk away from a nightclub on the footpath between the TGB building and the URS building. Mr Hatzis appeared agitated and angry. He was jumping around and saying ‘I’ll bash him’, ‘I’ll smash him’. She then saw a male and female whose appearances were consistent with their being CZ and Vilson Zefi. They walked towards Mr Hatzis and Mr Russo and argued with them but she could not hear what was said. After the man and woman left, another angry looking man who was ‘jumping around’ appeared and confronted Mr Hatzis and Mr Russo.
At about 2:25:18 am HN was filmed on CCTV walking south on the southern footpath of Waymouth Street to a position out of view of CCTV cameras on the YHA building. At that time he was wearing a white puffer jacket.
Ms N was HN’s girlfriend in August 2012. She testified at the trial. At 2:25:56 am she is shown on CCTV footage taken from a camera on the YHA building standing on the southern footpath of Waymouth Street. At around 2:28:34 am, HN can be seen by himself walking and raising his right arm. At 2:29:09 am HN, Ms N and her friend Ms Y are seen on CCTV footage walking east along the southern footpath of Waymouth Street. At about that time HN is again captured raising his right arm as he is walking along. HN testified that on both occasions he raised his arm to activate the electronic remote control door lock on Vilson Zefi’s car. According to HN, Vilson Zefi was going to give him a lift home. HN testified that to that end Vilson Zefi had given him the keys to his car so that he could wait in it until Vilson returned from accompanying CZ to her Yaris. Vilson Zefi had told HN that his car was parked on the northern side of Waymouth Street but he had not specified where.
At about the same time, at 2:29:15 am CZ’s blue Yaris is seen turning left into Waymouth Street through the Morphett Street slip lane. CCTV footage shows David Zefi in CZ’s car. It is driven eastward in the direction in which HN, Ms Y and Ms N are walking. At about that time, Mr Jakaj is filmed standing at the front of Savvy talking to K.
At 2:29:17 am HN is seen still walking east on the southern footpath of Waymouth Street past the YHA. At that time he looks across the road to his north. At about that time CCTV footage captures Mr Stakaj gesturing in HN’s direction from the corner of Waymouth Street and Light Square on the northern footpath of Waymouth Street. HN testified that he and Mr Stakaj had been waving goodbye to each other. He also testified that he walked across to the northern side of Waymouth Street. The prosecution allege that Mr Stakaj was gesturing to convey some other information to HN. On our viewing of the film either may have been the case. Immediately thereafter, Mr Stakaj moved north into Light Square. He is seen to be wearing a long sleeved white top with a hood attached.
David Zefi testified that he was in CZ’s Yaris when it turned into Waymouth Street and that his intention was to go to a hotel room with her. He testified that he then received a phone call from Vilson Zefi telling him that a fight had broken out. Whether that is right or not, there is no doubt that, shortly after the Yaris drove into Waymouth Street, he was on Waymouth Street to the east of Savvy nightclub. So much is clear from the following events captured on various CCTV cameras on Waymouth Street:
·2:29:49 am: Mr Jakaj, K, and Beshara Saad (a security officer engaged by Savvy) are standing in front of Savvy.
·2:30:18 am to 2:30:20 am: David Zefi is shown running west along the southern footpath of Waymouth Street to a position in front of Savvy where he speaks to Mr Jakaj before throwing his hat down and runs north into Light Square.
·At 2:30:33 am: David Zefi is captured by another camera continuing to run north into Light Square.
Moments later HN is filmed on another CCTV camera running past the YHA building west along the southern footpath of Waymouth Street. He is wearing a white short sleeve t-shirt but not the puffy jacket he was wearing earlier. HN testified that CZ called out to him from her Yaris parked on the southern side of Waymouth Street and informed him that trouble had broken out in Light Square. Ms N and Ms Y testified that after speaking to CZ who called out from a car, HN left his jacket and went in the same direction as David Zefi towards Savvy.
We pause here to observe that given the timing it is more likely that HN returned to Light Square because he followed David Zefi rather than as a result of Mr Stakaj’s gesture.
Shortly after David Zefi is captured by the CCTV camera crossing into Light Square, HN does the same.
It will be recalled that after leaving Savvy Mr Hatzis ran in and out of Playhouse Lane wearing only a T-shirt both times. Mr Russo testified that after leaving Savvy and crossing into Light Square, Mr Hatzis retrieved his jacket from the unnamed lane between the TGB and URS buildings. It will be remembered that Ms Smith placed Mr Hatzis and Mr Russo between the TGB and URS buildings when they were approached by the man and woman with whom they argued. A jacket belonging to Mr Hatzis was found close to the position where he was later fatally stabbed. There was no evidence that anyone other than him was wearing his jacket. It follows that whatever Mr Hatzis did in Playhouse Lane, he did not retrieve his jacket from there. Mr Russo denied that Mr Hatzis ever went down Playhouse Lane but it was common ground that Mr Russo was very intoxicated. It may be that Mr Hatzis mistakenly thought that his jacket was down Playhouse Lane, or it may be that he went there for another purpose. Ultimately it matters little. This evidence was in issue at trial because it was the defence’s contention that Mr Hatzis armed himself with a knife before the fight. He plainly had an opportunity to do so before the fight whether he retrieved his jacket or not. His decision to hide the jacket is circumstantial evidence that there was a metal object in it. However, if there was a knife in the jacket, there was no evidence, other than David Zefi’s testimony, that Mr Hatzis used it.
Mr Russo testified that outside the URS building two or three men approached him and Mr Hatzis. Again, that evidence is consistent with Ms Smith’s testimony that after the man and woman left, Mr Hatzis and Mr Russo were approached by a number of other men. A fist fight broke out between Mr Hatzis and the men. One of the men threw the first punch splitting Mr Hatzis’ lips. According to Mr Russo, Mr Hatzis then stepped back and braced himself for more fighting when he was approached again. This time Mr Hatzis managed to punch the man coming for him first, knocking him to the ground. Mr Russo could not describe that man but it is common ground that he was Mr Dodaj.
Mr Russo testified that neither he nor Mr Hatzis were armed with a knife.
The fight described by Mr Russo, which was witnessed by several others, probably occurred after the argument witnessed by Ms Smith and whilst CZ and David Zefi were driving away in the Yaris. The fight was probably communicated in some way, likely by Vilson Zefi, to David Zefi causing him to run back to Light Square.
Mr Russo remembered that one of the other men in the initial confrontation was wearing a white jacket or longed sleeved jumper with a white hood. The man had a dark complexion, dark short hair and brown eyes. The man was in his late 20’s or early 30’s. In cross-examination Mr Russo agreed that he told the police on the night that the person in the white jacket had a thin build, was about 170 centimetres tall, had a Lebanese appearance, dark brown Asian eyes and was called ‘Peter’ by the other males. He testified that he believed that description to be correct when he gave it to the police.
It was an agreed fact that on the day of his arrest 5 February 2013, Mr Stakaj was 179cm tall and stockily built. He was born on 5 March 1993 and hence was almost 20 years old. It was common ground that he has a pale complexion.
Mr Russo gave evidence that more and more men joined in the fight against Mr Hatzis. Mr Russo tried to intervene. Punches and kicks were thrown. Mr Hatzis fought back and in the process of doing so, knocked one of the men to the ground and may have knocked him unconscious. Mr Russo testified that they were driven backwards down the footpath on the eastern side of Light Square as more men joined in the attack on them. Mr Russo joined the fight and tried to pull the assailants away but there were too many. His attempts were thwarted when he was attacked by a man wielding a belt.
Mr Russo noticed the man with the belt after the first confrontation. The man had a very dark complexion, short brown hair and brown eyes. His age was about 24. He was a little bit taller than Mr Russo, who was about 174cm. He swung the belt around his head and whipped it at Mr Russo and Mr Hatzis and then wrapped it around his fist. Samantha Smith also described one or two men using a belt and belt buckles in the fight.
Mr Russo watched Mr Hatzis standing and fighting, punching and trying to defend himself.
Mr Russo gave evidence that another man then put his hand behind his back and pulled out a sharp object and hit him over the head with it. He tried to deflect punches thrown at him but eventually he fell. His vision became blurred and he blacked out. When he came to he noticed Mr Hatzis on the ground, but he had not seen him fall. People were around Mr Hatzis and were kicking and punching him. Shortly afterwards they all ran off.
On that night Mr Jakaj was wearing a grey sleeveless zip up hooded top and a grey t-shirt. A grey sleeveless zip up hooded jacket was found in the spot where Mr Hatzis was being treated by ambulance officers. It was heavily bloodstained. It was said to be identical to Mr Jakaj’s jacket. DNA belonging to both Christopher Hatzis and Mr Jakaj was found on the jacket. Mr Jakaj’s DNA was also identified on a belt found near the scene with the buckle missing. There were bloodstains, bearing Mr Russo’s DNA profile, on the buckle which was found a little distance away.
Footage from the CCTV camera on the YHA building shows Joshua Morgan and Andrew Butler crossing Waymouth Street and walking towards Light Square at 2:31:40 am. Joshua Morgan testified that on leaving Savvy that night, he saw a fight in Light Square. He testified that he was outside the YHA when the fight broke out. The fight was taking place 30 to 50 metres to the north, on the east side of Light Square. He saw around eight males fighting. He saw the man who was later known to be Angel Dodaj knocked out. He said that man remained on the ground until after the attack on Mr Hatzis and Mr Russo had finished. He did not see anyone help the man who was knocked out. He did not recognise any of the people who were fighting. Joshua Morgan described the fight continuing north towards Currie Street. The fight was between two men who appeared to be together and who were outnumbered by another six men. He remembered a man with a ripped white shirt going to the ground but then coming back up fighting. That man delivered blows in a stabbing motion to the person who must have been Mr Hatzis. He described them as upper cut blows. When Mr Hatzis dropped to the ground, the fight ended and everyone else ran off.
It follows from the testimony of both Joshua Morgan and Mr Russo that Mr Hatzis must have retrieved his jacket before the fight with Mr Dodaj. After Mr Hatzis struck Mr Dodaj to the ground he did not have an opportunity to retrieve his jacket, or any knife, from either of the lanes where it was said to have been kept. If he had a knife at the time of the fight with Mr Dodaj, he did not see fit to use it or even brandish it. The crowd of men converging on Mr Hatzis are likely to have reacted very differently to the descriptions given by Mr Russo and Mr Morgan if Mr Hatzis had produced a knife in the initial confrontation. The choreography of the ensuing fight would have been very different. Nor is there any evidence that any persons sustained a laceration of any kind apart from David Zefi and, of course, Mr Hatzis.
It is inconceivable that, in the face of the overwhelming numbers confronting him and Mr Russo, if Mr Hatzis had a knife in his possession he would have only produced it in the moment before he and Mr Russo were overcome. The evidence establishes beyond reasonable doubt that he was not armed with a knife during the conflict.
Andrew Butler, who was with Joshua Morgan, said that he moved across Waymouth Street from Savvy and saw five or six people involved in a fight. He said that he saw Mr Stakaj, whom he knew well, with his arm around another person supporting him as they were walking away from the fighting. The man Mr Stakaj was supporting appeared dazed. The description given by Mr Butler places Mr Stakaj well away from the location at which Mr Hatzis was stabbed. If the jury accepted Mr Butler’s evidence they were bound to bring in a verdict of not guilty. It follows therefore that they did not do so. There were reasons available to the jury not to. His evidence was curt, laconic and dismissive. Of course it is one thing not to accept his evidence; it is quite another to dismiss the possibility that Mr Stakaj was not, as Mr Butler’s evidence suggested, some distance away, possibly supporting Angel Dodaj, during the final assault on Mr Hatzis.
A hair extension, which Mr Stakaj had been seen playing with in Savvy earlier that night, was found in a parking bay perpendicular to the eastern footpath of Light Square adjacent to the URS building. It was found close to the position at which Mr Hatzis punched Mr Dodaj to the ground in front of the URS building. That evidence places Mr Stakaj about 30 metres away from where Mr Hatzis was stabbed but it is also consistent with the possibility that his involvement ended after Mr Dodaj was punched to the ground.
A number of other witnesses saw Mr Russo and Mr Hatzis being driven backwards by a group of men along the eastern footpath in a northerly direction.
Beshara Saad is shown by CCTV footage to walk off the Waymouth Street footpath towards Light Square at 2:31:10am. Mr Saad testified that he stood on the footpath in front of the TGB building. He testified that he saw Mr Jakaj and David Zefi run across Waymouth Street and then further north along the eastern footpath of Light Square. Mr Saad gave evidence that he saw five to eight people in two groups before David Zefi and Mr Jakaj ran to them. He did not recognise any people in the group other than Mr Jakaj and David Zefi. Mr Saad knew Mr Stakaj but did not testify that he was there. However, it must be borne in mind that on his evidence he was some way away from the fight and his view may have been limited. Mr Saad saw other men, one of whom he recognised as HN, standing close to him near the TGB building. Mr Saad was still on the footpath when the men who had fought Mr Hatzis and Mr Russo dispersed and ran back to Waymouth Street. Amongst the fleeing men who ran past him, he recognised David Zefi and Mr Jakaj. He saw that David Zefi’s white shirt was torn. He did not recognise any of the other four men who ran past him.
Beshara Saad’s testimony is strong evidence that HN did not participate in the final assault on Mr Hatzis. On the appeal, counsel for the Director accepted that the jury’s verdict did not necessarily entail a rejection of Mr Saad’s evidence in that it was open to the jury to find that HN may have engaged in the final assault before or after Mr Saad’s sighting of HN. However the final assault took place in a short period of time between 2:30:20 am when David Zefi is shown running north into Light Square and 2:32:36 am when he is seen running south back across Waymouth Street. Mr Saad was only in front of the TGB building from 2:31:10 am. There was very little time for HN to be involved in the fight. More importantly, there is no obvious reason to reject Mr Saad’s evidence. Ultimately the question is whether the totality of the prosecution evidence proves beyond reasonable doubt that HN participated in the final assault notwithstanding the apparently credible testimony of Mr Saad.
Babatundji Williams-Fullwood observed the events from in front of the YHA building. He described one or two men confronted by about five others. One of the men being confronted put his hands up with his palms facing forward. That man, and his friend, were moving backwards. He saw a man wearing a short sleeved white shirt run towards them.
Ms Smith gave evidence that about five to seven people were involved in the final assault on Mr Hatzis. The group continued to attack Mr Hatzis when he was on the ground.
Mikaela Tyas was sitting on the steps of the URS building. She was with Ms Smith. She saw a group of people on the footpath to the north of her position. She thought there were six to eight. She agreed that in her statement to police she had said there may have been 10 or 12. She described the fighting as ‘wrestling, scuffling, fighting’. She heard screams and her friend Ms Smith say that she thought someone had been really hurt. By that stage she had stood up. She saw six to eight males run off. One of those males was wearing a white jumper with a hood. She also described it as having some black print. She did not say whether it was writing or an image or on what part of the jumper the black print was. The person wearing the white jumper ran past her towards Savvy. She could not describe his height or weight. She said only that he was of ethnic appearance. She was not able to identify him. Police later seized from Mr Stakaj a white jumper which had black and grey figures printed on its front.
Mona Pham watched the fighting from a vantage point nearby the entrance to the unnamed lane. At the conclusion of the fight she saw 10 combatants and bystanders flee in all directions. She said that men started running after she heard something smash but at one point she also testified that she heard the smashing sound ‘in between’. Coincidentally at 2:32:37 am, K approached a taxi stationary on Waymouth Street and smashed its side mirror. That timing is just one second after David Zefi is first caught on CCTV footage running out of Light Square. A tall man wearing a grey hoodie ran past her. She knew Mr Stakaj but did not remember seeing him on that night.
Karl Grieger watched the fighting in Light Square from the balcony of the YHA building. After the fighting had ended, he saw a person in a ripped white shirt run back towards, and then run past, the YHA building with three others behind him. A minute or two later he heard two people speaking to each other on the footpath beneath the balcony. One of those persons said ‘I didn’t want to be involved in your fight’. He sounded angry. The men under the balcony had darker hair and were maybe of Greek or Italian appearance with olive skin.
Jayden Coleman also observed the fighting from the balcony of the YHA building. After the fight he too saw a male wearing a ripped white t-shirt run towards the YHA building along the footpath with four or five people following him. The male in the ripped white t-shirt got into a car in Waymouth Street and left. That night David Zefi was wearing a sleeveless black vest over a white t-shirt and a baseball cap but the black vest was discarded before the stabbing. Those who remained were agitated and talking loudly. Another man who left the fight got into a taxi. Footage from the CCTV camera on the YHA building shows David Zefi in a white t-shirt running from Light Square to the southern footpath of Waymouth Street, and back onto the centre of the road at 2:32:36am before leaving with Vilson Zefi in CZ’s Yaris at 2:32:48am. Footage from a YHA CCTV camera shows that HN ran onto Waymouth Street from Light Square at 2:32:02 am, 34 seconds before David Zefi was first filmed fleeing Light Square at 2:32:36 am.
Ms Smith gave evidence of some men who appeared to be smugly satisfied with themselves walking back towards her position after the fighting stopped. Whoever they were, if she is correct in her recollection that they were walking, it is unlikely that David Zefi was amongst them.
Jayden Coleman said he also saw and heard another man in a white jumper who was standing directly below the YHA balcony. Another man in a dark jumper approached him and said ‘he’s unconscious on the concrete’. The man in the white jumper became angry and grabbed the other by the collar. The man in the dark jumper then said ‘I don’t want your fight’. The man in the white jumper had white skin, short hair, was solidly built and was about six feet tall. The white jumper had a hood.
It is possible that one of the men under the balcony overheard by Karl Grieger and Jayden Coleman was Mr Stakaj. However the conversation is as consistent with an involvement in the attack on Mr Hatzis as it is with being a bystander.
Ms Y testified that after HN left them to go to Light Square she and Ms N waited for him near CZ’s car. Some minutes later he returned and told them to run to Vilson Zefi’s car. All three of them ran to the car. Despite some difficulty because the door would not open Ms Y got into the front seat and Ms N got into the rear. HN drove the car, executing a U-turn, and driving west along Waymouth Street towards Light Square.
Ms Y testified that HN stopped Vilson Zefi’s car in front of Savvy on Waymouth Street. Whilst the car was stationary, a man who was about 5 foot 8 inches, well built and had short hair approached them. She identified that person as Mr Stakaj. Mr Stakaj spoke to HN through her open window. She described Mr Stakaj talking to HN across her. During the course of her testimony Ms Y did not say that she saw Mr Stakaj pass anything to HN. At 2:34:09 am footage from a CCTV camera on the YHA building shows Vilson Zefi’s silver Commodore driven west along Waymouth Street before stopping in the middle of the road.
Ms Y gave evidence that HN then drove ‘towards Light Square’. She thought ‘he went the wrong way on the road’. CCTV footage from the YHA camera shows the silver Commodore drive the wrong way through the south-eastern slipway of Light Square at 2:34:26am. Ms Y testified that when the car came to a stop in Light Square, she saw ‘a group of people crowding around somebody that was slumped on the ground’. She thought that HN pulled into a parking bay ‘in front of the URS’ [building] but the ‘engine was running the whole time’.
When asked ‘Did [HN] say anything or do anything at that point’ she replied ‘he had a look at what was going on and then he said something like ‘Shit’ before moving off’.
Christopher Hatzis died of blood loss caused by multiple wounds. There were eight stab wounds involving the chest, abdomen, right upper arm, right hip and right buttock. In addition, there were six incised wounds caused by a sharp object being drawn across the surface of the skin. David Zefi testified that it was Mr Hatzis who introduced the knife into the fight. He gave evidence that he managed to take the knife from Mr Hatzis and then used it to defend himself. David Zefi sustained the following injuries in the course of the fight:
(a)on Mr [David] Zefi's right upper limb, injuries to his right hand, specifically:
(i) a 10 to 14 day old, part healed, superficial 9 mm laceration over the top of the right little finger;
(ii) a 10 to 14 day old, part healed, 6 mm superficial laceration over the upper surface of the right ring finger; and
(b)on Mr [David] Zefi's left upper limb, a cut to his left forearm consistent with a sharp blade wound and a graze to his left shoulder specifically:
(i) a 10 to 14 day old 40 mm long oblique, part healed, laceration to the left forearm. This was sharp edged and tailed at each end consistent with a sharp blade wound, deep centrally with wound edge separation;
(ii) a nearly healed graze, 18 mm by 9 mm in diameter on the left elbow; and
(iii) a very superficial, near healed, with peeling scab, circular 35 by 40 mm diameter graze or abrasion on the left outer deltoid shoulder.
We return to the significance of those injuries when dealing with David Zefi’s appeal against sentence.[1]
[1] R v Zefi; R v Jakaj [2017] SASCFC 121 at [31].
Kostas Styliadis, Joshua Fragnito, George Magnisalis, Nicholas Kostalas and Andrew Belcaro and some others were celebrating an 18th birthday on the night of 3 August and into the morning of 4 August. They came across Mr Stakaj whom they knew. They gave evidence of their conversations with him.
Kostas Styliadis testified that he heard Mr Stakaj say ‘we stabbed someone’ but agreed that Mr Stakaj may have said ‘they stabbed someone’. Even if Mr Stakaj used the pronoun ‘we’, allowance must be made for a similar degree of looseness in the association he intended to convey.
Joshua Fragnito knew Mr Stakaj from school but gave no evidence of any incriminating conversation with him.
George Magnisalis also knew Mr Stakaj from school. According to Mr Magnisalis, Mr Stakaj told him that ‘Chris Hatzis got stabbed’ or ‘someone stabbed Chris Hatzis’. Mr Magnisalis also testified that one of his friends pointed to what appeared to be a stain on Mr Stakaj’s top and that Mr Stakaj then quickly walked off.
Nicholas Kostalas knew Mr Stakaj from school. He testified that Mr Stakaj and Mr Dodaj ‘came over and started talking to our group’ and that someone said ‘someone got stabbed across the road’. He gave evidence that he heard Andrew Belcaro say to Mr Stakaj ‘you got blood on you, bro’ and that when he went to look Mr Stakaj had covered the stomach area of his jumper with his arms.
Andrew Belcaro also knew Mr Stakaj from school. He denied that anyone said anything about Mr Stakaj’s jumper. He did not give evidence of any incriminating conversation.
The Judge told the jury that the prosecution relied on the evidence of the birthday group only to prove Mr Stakaj’s knowledge of what happened to Christopher Hatzis and that he had some connection with the fight. It is unsafe to treat their evidence as proving any closer connection between Mr Stakaj and the stabbing of Mr Hatzis because of the uncertainty over which pronoun he used in speaking of it, and because of the inconsistencies in the accounts those witnesses gave of the blood spot conversation.
The witness OW testified that she first met Mr Stakaj in around September 2012, after the stabbing. One night in Hindley Street, sometime after the stabbing, he told her that Mr Dodaj and Mr Hatzis were being ‘obnoxious and rowdy’ and ‘throwing a few punches and then [Mr Dodaj] got knocked out’. OW also testified that he said that he had tried to stop the fight because ‘he didn’t want him [Mr Hatzis] to get any more hurt than he was’. He said that he wanted to help because Mr Hatzis was one of his friends. Mr Stakaj told her that he was upset and saddened by Mr Hatzis’ death. The conversation relayed by OW is evidence that Mr Stakaj was involved in the altercation between Mr Hatzis and Mr Dodaj but does not implicate Mr Stakaj in the stabbing of Mr Hatzis at all. If anything, it is exculpatory.
The prosecution also relied on another witness who testified that in a telephone call with Mr Stakaj on 18 October 2012 he told her that he had got into a fight and that the police were monitoring him.
The prosecution case against HN, apart from the evidence that he took part in the final assault, relied heavily on the evidence of:
· Ms Y about events and conversations in the silver Commodore when HN was driving it away from Light Square and towards his home in Richmond; and
· Ms N about a conversation between HN and Vilson Zefi the next morning.
Ms Y gave evidence that on the way to his house in Richmond HN asked Ms N, who was in the back seat, for a cloth. Ms N passed over what appeared to be a jacket. Ms Y testified that she then saw HN holding something with a rectangular wooden handle. She did not pay close attention because she ‘was on my phone texting, so I wasn’t in the whole moment …’.
Ms Y’s testimony continued:
Q.What was [HN] doing with the handle and the jacket that he was holding.
A.He seemed like he was wiping something.
Q.The something that he was wiping, was that attached to the handle.
A.I would say that it would have been attached to the handle.
Q.How long did that take him. Again, if it helps to look at the second-hand on the clock.
A.How long, sorry?
Q.How long did it take him to do that again. When you're thinking about that, bear in mind the second-hand on the clock.
A.A few seconds, nothing more than a minute.
Later in her evidence, Ms Y testified that she could not ‘say I’m 100% sure there was any form of movement’, and also that she could not say whether there was any movement or action, by HN, associated with the jacket or the item.
Even if it is inferred from Ms Y’s testimony that at some point HN took possession of the knife used to stab Mr Hatzis, the prosecution evidence fails to establish that he took possession of it whilst participating in the fatal attack on Mr Hatzis. On the prosecution evidence, there was time and an opportunity for HN to have been handed the knife by one of the men who fled when the final assault ended. If, as was submitted, Mr Saad may not have had HN in his sight over the entire time that HN was in Light Square, a third person may have delivered the knife to HN after Mr Hatzis was stabbed. Alternatively, as the prosecutor submitted to the jury, Mr Stakaj may have handed the knife to HN without Ms Y observing it. Finally the knife may have been passed to HN when the silver Commodore was parked briefly in front of the URS building.
Ms N gave evidence that when HN returned to Vilson Zefi’s car on Waymouth Street, his T-shirt appeared to be a ‘little bit stretched’ but that there were no marks or tears on it.
However in cross-examination she testified that she was not certain whether the appellant’s t-shirt was stretched, and that she did not have any memory of it being damaged or stretched to any noticeable degree.
Ms N testified that when HN drove Vilson Zefi’s car into Light Square, she was in the back seat and Ms Y was in the front seat. Ms N testified that HN turned north into Light Square in the carriageway for south bound traffic but then parked the car in front of the Lime Café. Ms N testified that they did not see Vilson Zefi or anyone other than one of the Savvy security guards and that after speaking to Vilson Zefi on the phone, HN drove to his home in Richmond.
Ms N contradicted Ms Y’s evidence regarding the wooden-handled object in the possession of the appellant:
Q.You've been asked this question earlier but I just want to be clear about something. In the course of that trip you were not asked to do anything by [HN] were you.
A.No.
Q.You weren't asked to find anything in the back seat.
A.No.
Q.You weren't asked to hand him anything.
A.No, it was a very short trip back home.
Q.And you weren't asked to look for a cloth and find a cloth in the back seat.
A.No.
Q.And you weren't asked to find a jacket and hand him a jacket.
A.No.
Q.There was nothing that you observed in the car that gave any indication that there was a knife in the car.
A.No.
Q.And there was nothing going on in the car to indicate that at any point [HN] was handling something wooden, like a wooden-handle item.
A.No.
Q.And you did not see any such item being carried in that car that night, did you.
A.No, I did not.
At the appellant’s house Ms N stated that:
A.[Ms Y] and I waited in the car, [HN] went inside, …
…
A.[HN] just changed into more comfortable clothes, I think.
Q.Something more comfortable than a white T-shirt.
A.Yeah, I think he changed into just track pants or something, but I don't remember.
Q.Did he change his T-shirt.
A.I - I don't know, I think so, but I'm not sure.
Q.Do you remember what he changed into.
A.No.
Ms N testified that after going to HN’s home in Richmond, they travelled to CZ’s house off Port Road. Vilson Zefi was there and he took over the driving of his car.
Ms N accepted in cross-examination that she may have ‘mixed up’ the sequence and that HN may only have changed at the end of the night and she said that she still had a vision in her mind of HN wearing the same clothing from earlier in the night as he was standing on the footpath talking to Vilson Zefi at CZ’s house.
Ms N testified that Vilson Zefi drove into the city to drop off Ms Y at her apartment just off Rundle Street. Ms N testified that on the way to Ms Y’s apartment, Vilson Zefi told HN that he had been hurt in the fight. HN expressed some surprise. Ms N testified that after dropping off Ms Y and meeting with some other acquaintances, she and HN returned to HN’s Richmond home.
Ms N gave the following evidence of a conversation between HN and Vilson Zefi that took place the following morning when Vilson Zefi visited them:
… [HN] had said that David had started a fight, that it got out of hand, that people were trying to stop him - 'people', as in the boys that were there that night - and then Vilson had replied and they were agreeing on some things but, like I said, they weren't talking directly to me, I was just listening and this is what I heard.
In cross-examination, she was not confident about the precise words that HN had used in his conversation with Vilson.
Ms N continued:
A.… [HN] did mention that David did do something really bad and they weren't talking so that I could hear it, some bits were still in Albanian, but towards the end [HN] did say that David had stabbed someone.
Q.Did he describe how David had done that.
A.No. He just did like a motion and when he did say that David had stabbed someone, he didn't actually say he had stabbed someone with a knife, he almost whispered to Vilson so that I -
Q.Describe the motion to us.
A.Just with his hand. Like he just did like a back and forth motion.
Q.Are you able to demonstrate for us today, as best you can.
A.I don't remember what exactly he did, it was just a back and forth motion.
Q.How long did this conversation with [HN] and Vilson last.
A.To just under an hour.
In cross-examination, Ms N agreed that HN tended to be very expressive with his hands when in conversation with people and gestured a lot. Ms N testified that Vilson Zefi and HN conversed in both Albanian and English.
Ms N also testified as to a conversation between HN and Vilson Zefi that:
A.… both said that they were worried that police would come question them if they knew that their friends were there and that they were there that night. I remember [HN] just saying 'What if they find something like blood or something on my shoes?'…
In cross-examination, Ms N gave evidence that HN continued to wear the same shoes after the incident, and agreed that Vilson Zefi was the one who expressed concern about the police finding blood on his shoes.
The jury was entitled, of course, to accept the evidence-in-chief of Ms N and not her retractions and qualifications in cross-examination because she was favourably disposed to HN by reason of their former romantic relationship with him. Her ready acceptance of propositions put to her in cross-examination, which were inconsistent with her evidence-in-chief, may have led the jury to prefer her evidence-in-chief. In considering the unreasonable verdict ground it is necessary to proceed on the basis of Ms N’s evidence-in-chief, because to make that ground good, the appellant must show that the jury must have entertained a reasonable doubt even after making proper allowances for its advantage in assessing the oral testimony it heard.
If HN was part of the final assault on Mr Hatzis, it is unlikely that he would only express concern about blood on his shoes and not on his clothes more generally. His concern about blood on his shoes is equally, and perhaps more, explicable by a concern about blood dripping from the knife if he received it after the fight. HN’s decision not to dispose of his shoes suggests that he did not think it very likely that they were blood stained. It is also unlikely that HN would make such a remark without revealing his involvement in the final assault if he were part of it. We have not ignored the evidence that some of the men kicked Mr Hatzis after he fell to the ground. However no mention of that was made in the conversation with Ms N.
Importantly, the evidence of Mr Saad, which on its face could not easily be put to one side, places HN close to the TGB building. That testimony and HN’s early departure from Light Square makes it unlikely that he was one of the men who kicked Mr Hatzis after he fell to the ground.
It can be inferred from the evidence of HN demonstrating a stabbing motion to Vilson Zefi that he saw David Zefi stabbing Mr Hatzis. However, the prosecution evidence did not exclude the possibility that HN was conveying information he had received from others. HN testified that he had read the headline of the website at AdelaideNow the night before that conversation, that he had ‘put the pieces together [the following day]’, and that he had spoken to Vilson Zefi before Vilson came over to HN’s house. In any event even though HN testified that he had left Light Square when the stabbing occurred and before the fighting ended, he may have stayed longer and have seen more than he admitted. However his presence in Light Square when the stabbing occurred does not mean that he played a part in the fatal final assault on Mr Hatzis.
Summing Up
The basis of the prosecution case against Dario Stakaj and HN can be found in the Judge’s summing up. The Judge summarised the prosecution case against Mr Stakaj on the charge of murder as follows:
Even if you accept the general thrust of the prosecution case against Stakaj and accept that he admitted involvement, you will still need to be very careful about what crime, if any, is proved against him. Because in saying he was involved, what flows from that? What is involvement in terms of this fight? Remember that in order to prove murder against Stakaj the prosecution need to prove that Zefi committed murder and that at the time when the fatal blows were delivered Stakaj was present and that he was one of the group attacking Hatzis, or facilitating the attack on Hatzis by pinning him or overpowering him. And it has to prove that he knew all the essential facts of Zefi’s crime and that he assisted and encouraged him in that crime. …
A similar direction was given on the alternative of manslaughter:
As before, a person who is said to have aided and abetted the crime of manslaughter can only be guilty if he – that is, whichever accused you are considering – was present at the scene when the crime was being committed and, knowing the essential facts and circumstances of the crime being committed, that is, knowing that Mr Zefi was stabbing Hatzis and that the stabbing was both unlawful and dangerous in the sense that I have explained it to you, if, with that knowledge, he intentionally assisted and encouraged Mr Zefi to commit the crime. But, as I said in relation to murder, the prosecution alleges that the other accused were not just standing by and encouraging but they say that actual assistance of a critical kind was being rendered. That is the basis on which the case is put to you.
The Judge summarised the case against HN as follows:
I turn finally to the case against [HN]. In essence the prosecution case is that [HN] was alerted to something happening by [CZ] as he walked away from Savvy with [Ms Y] and [Ms N]. He effectively dropped everything, including his jacket, to run to the scene of the fight. He was seen both by Ignatiadis and on CCTV doing so. When I say that, he is seen to run off towards the scene of the fight; of course there is no CCTV beyond a certain point. Then, the prosecution says, it is clear that he emerged running to hurry the two women into Vilson’s car. In evidence he said the night was ruined; although at that point, on his account, not much had happened. He then drove back to the fight scene, home, and then out again, all of this being contrary to his pre-existing plan. The prosecution suggests you should infer that he carried the knife away from Liqht Square [sic]. The prosecution suggests that his actions are only consistent with his having been involved directly in the fight and, relying on the general evidence, and particularly that it was about five or six onto two, that he must have been one of the five or six, and he must have been aiding and abetting Zefi.
…
Well ladies and gentlemen, if you are satisfied that [HN] carried away the knife which was used to stab Christopher Hatzis then that would probably make him guilty of the offence of accessory after the fact to either murder or manslaughter. However, he is not charged with that offence and it is not an alternative offence to murder. The prosecution relies on that evidence to closely connect [HN] with the crime and it suggests that from that evidence you can infer that [HN] was indeed involved in the fight. You should consider that evidence very carefully and only factor it into your deliberations if you are very confident, not only about the honesty of [Ms Y], but also about her accuracy. Naturally when you consider that issue you will bear in mind that both [Ms N], and [HN] himself, denied any such event.
Conclusions
As we have already observed the only prosecution evidence from which it might directly be inferred that Mr Stakaj participated in the final fatal assault on Mr Hatzis is the evidence of Mikaela Tyas. However, her evidence does not identify Mr Stakaj as the man who walked past her wearing a hoodie. A hoodie is a common form of dress. The evidence in this case shows that other young men in and around Light Square on that night were wearing hoodies. Ms Tyas’ description of the hoodie is general in nature. The remaining prosecution evidence does no more than place Mr Stakaj in Light Square. His presence there is explained by his association with David Zefi, the perpetrator, and other men who were involved in the fighting with Mr Hatzis. Care must be taken not to jump to a conclusion of guilt from his association with these men. There is no evidence that demonstrates that he went any further than the position at which the piece of hair extension was found, still some distance away from where Mr Hatzis was fatally stabbed.
The proposition that Mr Stakaj passed a knife to HN is largely speculative. First, the only evidence that HN may have held a knife comes from Ms Y and that inference must be drawn from her unsupported testimony that she merely saw HN holding an object with a wooden handle. Second, Ms Y said that Mr Stakaj spoke to HN through the window on her side of the car and yet she did not say that she observed them pass any object across her. Finally, the prosecution rely on Ms Y’s testimony that a wooden handled object was in the possession of HN as evidence from which it could be inferred against both Mr Stakaj and HN that both were present when Christopher Hatzis was stabbed. The fundamental problem with the prosecution’s reliance on HN’s possession of the knife is that it cannot serve as evidence from which to infer the guilt of both HN and Mr Stakaj. The prosecution relies on HN’s possession of the object as an item of circumstantial evidence that shows that he was involved in the final assault which resulted in Mr Hatzis being killed. However, that proposition implicitly concedes that Mr Stakaj did not hand HN the knife when they spoke; if that is the case then evidence of the knife cannot be used against Mr Stakaj. Conversely, if Mr Stakaj handed HN the knife, then it would not show and could not have been shown that HN took possession of the knife during the final assault on Mr Hatzis. Accordingly the probative value of the evidence, if it be accepted that HN was in possession of a knife, was substantially undermined, as an incriminating circumstance, in both the case against Mr Stakaj and HN.
Mr Stakaj’s subsequent statements were, for reasons which have been discussed, of little weight.
Other than Andrew Butler, on the defence side there is evidence from witnesses which casts doubt on Mr Stakaj’s participation in the fight. That evidence cannot be easily put to one side. We bear in mind that the jury may have discounted or rejected their evidence. Nonetheless the relevant question on the ground of appeal that the verdict was unreasonable is whether all of the evidence in the case as it was before the jury proved beyond reasonable doubt that Mr Stakaj joined David Zefi and Mr Jakaj in the final assault on Mr Hatzis. Having regard to the whole of the evidence, we are not satisfied that the incriminating elements were sufficient to exclude the reasonable possibility that Mr Stakaj went only so far as the position at which the punches were exchanged between Mr Dodaj and Mr Hatzis and did not travel further north to where Mr Hatzis was fatally stabbed. The verdict of guilty of manslaughter cannot be supported having regard to the evidence.
We turn to the case against HN. The fundamental difficulty in the prosecution case against HN was that he was captured by CCTV cameras leaving Light Square well before David Zefi did. Just over two minutes elapsed between the time when David Zefi ran into Light Square and the time when he fled from it. In that time frame it is significant that HN departed Light Square 34 seconds earlier. The following table shows the chronological sequence of events:
2:30:20
David Zefi runs into Light Square
2:30:25
Mr Jakaj runs into Light Square
2:30:33
HN runs west along the southern footpath of Waymouth Street after which he must have entered Light Square
2:31:10
Mr Saad crosses into Light Square and sometime thereafter sights HN in the vicinity of the TGB building
2:32:02
HN runs out of Light Square
2:32:36
David Zefi runs out of Light Square
On the face of it, there is no reason to reject Mr Saad’s evidence that he saw HN in the vicinity of the TGB building. The prosecution adduced and relied on that evidence to place HN in Light Square. However Mr Saad’s evidence also shows that HN had no realistic opportunity, before or after that sighting, which must have been a little after 2:31:10 am, to have played a part in the final assault.
If the object seen by Ms Y was indeed the knife, the prosecution evidence did not exclude the reasonable possibility that it was delivered to him by intermediaries either before he ran away from Light Square, whilst he was on Waymouth Street, or after he drove Vilson Zefi’s car into Light Square.
HN’s behaviour in showering is suspicious. However there are far too many variables in human responses to crises of this kind, and so wide is the range of human behaviours, that it is not safe to infer from HN showering and changing clothes, whenever that might have been, that he participated in the final assault on Mr Hatzis. His demeanour, conduct and conversation after the events, even though frantic and distressed, are as consistent with witnessing the attack as participating in it. Indeed on balance, they appear to be more consistent with the former than the latter. For example, HN at no stage spoke of his participation in the final assault despite the many and wide ranging conversations of which the prosecution witnesses testified.
HN’s concern about blood on his shoes may be adequately explained by a number of reasons; for example, if a knife was handed to him, its presence in the footwell of the car, or his proximity to others who had been involved in the fight.
The difficulty in articulating the prosecution case against HN is demonstrated by the very general terms in which the prosecution case was put to him when he was cross-examined by the prosecutor:
Q.I suggest you were there when Mr Hatzis was being assaulted by a group of anywhere between four to six people.
A.I was not there.
Q.And that the reason you went to get the car was to help your friends get away from the scene.
A.No, that’s incorrect.
Q.I suggest you were actually there watching what was going on when Mr Hatzis was being attacked by a group of people.
A.No, I was not there
…
Q.Was your role in this to drive away with the knife to get rid of the knife used to stab Mr Hatzis.
A.No, that is incorrect
…
Q.I suggest that you saw Mr Zefi, David Zefi stab the man he was fighting with.
A.No.
Q.You actually saw the stab wounds inflicted.
A.No.
…
Q.I suggest that you saw all of what happened on Light Square, that you were right there front and centre, you know who was involved, you know what happened but you are deliberately not naming names because you don't want to get your friends into trouble.
A.That is incorrect.
Q.And that you've invented this story about standing up on the corner and not getting down close and you've invented this story of not seeing who was involved apart from Mr Zefi.
A.No, this is the truth.
The term ‘front and centre’ used by the prosecutor in the penultimate question is ambiguous. From the remainder of the prosecutor’s question the prosecutor was putting no more than that HN was in a position to see the men who did take part in the final assault. The prosecutor did not put to HN that he participated in the final assault.
On our review of the evidence, the prosecution has not proved beyond reasonable doubt anything more than what was put in those passages in cross-examination. On the evidence at its highest, it was open to the jury to find only that HN drove away with the knife, but HN was not charged with being an accessory after the fact. The verdict of guilty of manslaughter cannot be supported having regard to the evidence.
Mr Stakaj’s other grounds
Mr Stakaj also appeals on the grounds that:
·There was a miscarriage of justice by reason of the Judge’s failure to adequately direct the jury in relation to the appellant not having given evidence.
·That the prosecutor’s speculation that Mr Stakaj gave HN the knife after the assault, in the absence of a sufficient evidential foundation and after having failed to put the proposition to HN, occasioned a miscarriage of justice.
Having regard to our conclusion that the verdict was unreasonable, it is not necessary to deal with those grounds.
Orders
We make the following orders on the appeal brought by Mr Stakaj.
1Appeal allowed.
2Conviction quashed.
3Enter instead an order of acquittal.
We would make the following orders on the appeal brought by HN.
1Appeal allowed.
2Conviction quashed.
3Enter instead an order of acquittal.