R v Stakaj; R v N, H - [2017] SASCFC 120

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.

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read R v Stakaj; R v N, H and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2017] SASCFC 120
Decision Date: 22 September 2017

CaseChat Overview and Summary

This case concerned appeals by R v Stakaj and R v N, H against their convictions for murder. The appeals were heard by the Full Court of the Supreme Court of South Australia. The convictions arose from the fatal stabbing of Mr Hatzis in Light Square, Adelaide, following an altercation at a nightclub.

The central legal issue before the Court was whether the verdicts of murder against the appellants were unreasonable or insupportable having regard to the evidence presented at trial. This required the Court to consider the sufficiency of the circumstantial evidence and the burden of proof in establishing guilt for murder.

The Court reasoned that the prosecution's case against the appellants relied heavily on inferences drawn from their presence in Light Square and their association with the principal offender. However, the Court found that the evidence did not directly implicate either appellant in the fatal assault. Specifically, the evidence of a key prosecution witness did not identify Mr Stakaj as the person seen wearing a hoodie, and other young men in the vicinity were also wearing similar attire. Furthermore, the evidence did not demonstrate that Mr Stakaj moved beyond a certain point, which was some distance from where Mr Hatzis was stabbed. Similarly, the evidence against HN was considered insufficient to establish his direct involvement in the stabbing, with his actions being explained by his association with the principal offender and others involved in the fight.

The Court concluded that the verdicts were unsafe and unsatisfactory. Accordingly, the appeals were allowed, the convictions were quashed, and orders were made for a retrial.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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.

Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.