R v Stakaj; R v N, H

[2016] SASCFC 9

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v STAKAJ; R v N, H

[2016] SASCFC 9

Reasons for Decision of The Court of Criminal Appeal

(The Honourable Chief Justice Kourakis, The Honourable Justice Gray and The Honourable Justice Sulan)

23 February 2016

APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - POWERS OF COURT - OTHER MATTERS

APPEAL AND NEW TRIAL - NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS - PARTICULAR GROUNDS - IRREGULARITY AS REGARDS PROCEDURE - MATTERS RELATING TO JURIES

CRIMINAL LAW - APPEAL AND NEW TRIAL - PROCEDURE - POWERS OF COURT ON APPEAL - POWER TO ORDER NEW TRIAL OR QUASH CONVICTION AND DIRECT ENTRY OF VERDICT OF ACQUITTAL - WHERE NEW TRIAL ORDERED

CRIMINAL LAW - PROCEDURE - ADJOURNMENT, STAY OF PROCEEDINGS OR ORDER RESTRAINING PROCEEDINGS - STAY OF PROCEEDINGS - GENERALLY

Application to be heard on remaining appeal grounds.  The applicants were charged with murder.  Following a trial before Judge and jury, the trial Judge entered verdicts of not guilty to the charge of murder and verdicts of guilty to the charge of manslaughter in respect of both applicants.  Later that day, the foreperson returned to the Court to advise of a potential error with the jury verdicts.  The applicants lodged notices of appeal against the convictions of manslaughter.  The applicants appealed on the ground that the jury did not reach a proper verdict as to the charge of murder and, as such, the verdict as to manslaughter was void.  The applicants’ notices of appeal also contained common form appeal grounds, including that the conviction as to manslaughter was unreasonable against the weight of the evidence.  The respondent filed an application seeking that the Court exercise its inherent jurisdiction to expunge or quash all verdicts.  On appeal, the respondent’s application was allowed and an order was made for a new trial of both applicants on the charge of murder.  The verdicts of not guilty of murder and the convictions of manslaughter were quashed.

Whether the Court should have heard the applicants on the common form appeal grounds.  Whether, in the alternative, the Court should hear submissions as to whether the order on the respondent’s application should be for an acquittal or a permanent stay, instead of a retrial.

Held per the Court (dismissing the application):

1. The applicants’ right to appeal is governed by section 352(1)(a) of the Criminal Law Consolidation Act 1935 (SA), which provides that only a convicted person has a right to appeal that conviction. The recorded convictions were held to be invalid and thus there is no conviction from which the applicants can appeal.

Held per Gray J (Sulan J agreeing):

1.       The Court does not have inherent power to order an acquittal in these circumstances.  Inherent powers are concerned with giving the Court the power to enforce its rules of practice and to suppress any abuses of its process. The power to order an acquittal on appeal is statutory.

2.       It would have been inappropriate to order a permanent stay in these proceedings.  In the circumstances, the interests of justice require that a new trial is held on the Information in accordance with due process of law.

Criminal Law Consolidation Act 1935 (SA) s 352(1)(a) and s 353(2), referred to.
Case Stated on Acquittal (No 1 of 2015); R v Stakaj & N, H (2015) 123 SASR 523; Dupas v The Queen (2010) 241 CLR 237; Connelly v Director of Public Prosecutions [1964] AC 1254, considered.

R v STAKAJ; R v N, H
[2016] SASCFC 9

Court of Criminal Appeal:  Kourakis CJ, Gray and Sulan JJ

1. KOURAKIS CJ:    On Friday 18 September this Court delivered reasons and made orders in these matters. After hearing from counsel on the disposition of the appeals of Mr Stakaj and N on the ground that the verdicts were unreasonable, this Court recalled its orders and its reasons. This Court reconvened to deliver reasons and make orders disposing not only of the Director’s applications but also the appeals of Mr Stakaj and N.

2. Before delivering the reasons and making orders, counsel for Mr Stakaj and N asked this Court not to proceed to make final orders on either the Director’s applications or the appeals brought by them pursuant to s 352 of the Criminal Law Consolidation Act 1935 (SA) (the CLCA) until hearing submissions on the unreasonable verdict ground in each of their appeals. Counsel also submitted that their contentions as to the unreasonable verdict ground also went to the question of whether the Court should, in its discretion, decline to set aside the orders in the court below.

3. This Court refused that application.

4. For the reasons which I published, I dismissed both of the Director’s applications. I allowed the appeal of Mr Stakaj and N on the ground that the verdicts returned of not guilty on murder were not true verdicts. I, therefore, would have set aside their convictions for manslaughter. In the ordinary course, I would then have heard their submissions on the unreasonable verdict ground before determining the final disposition of their appeals. However, the orders made by the majority setting aside their convictions were made in the original (trial) jurisdiction of the Court. The appellate jurisdiction conferred by s 352 of the CLCA can only operate on a conviction. For that reason, this Court decided not to delay or stay the making of those orders in order to allow an appeal to proceed on a conviction which the majority of the Court had held should be set aside. There was, therefore, no utility in me hearing argument on the remaining grounds of appeal which only arose to be determined on my (minority) decision.

   GRAY J.

5. The defendants, Dario Stakaj and HN, and two co-offenders, were charged on Information with one count of murder.  On 22 September 2014, following a trial before Judge and jury in the Supreme Court, the trial Judge entered verdicts of not guilty to the charge of murder and verdicts of guilty to the charge of manslaughter in respect of both defendants and the co-offenders.  Later that day, the foreperson returned to the Court to advise of a potential error with the jury verdicts.  On 13 and 14 October 2014 respectively, Stakaj and HN lodged notices of appeal against the convictions of manslaughter.  The co-offenders did not appeal against their convictions. 

6. The defendants appealed on the ground that the jury did not reach a proper verdict as to the charge of murder and, as such, the verdict as to manslaughter was void.  The defendants’ notices of appeal also contained common form appeal grounds for which permission, where required, was granted.  One of those grounds was that the conviction as to manslaughter was unreasonable against the weight of the evidence.    These are my reasons for declining to hear submissions on that ground.

   Background

7. On 16 January 2015, the Director of Public Prosecutions filed an application seeking that the Court exercise its inherent jurisdiction to expunge or quash all verdicts, including those against the co-offenders, and order new trials on the Information.  The Director’s application and the defendants’ appeals were listed for two days, commencing 26 March 2015.  During the hearing, with the consent of all parties, the Court determined to adjourn submissions on the defendants’ common form appeal grounds until the validity of the jury verdicts had been determined.

8. On 18 September 2015, the matter was listed for delivery of judgment.  In a joint judgment with Sulan J, I allowed the Director’s application for a new trial of both defendants and the co-offenders on the charge of murder and quashed the verdicts of not guilty of murder and the convictions of manslaughter in respect of both defendants and the co-offenders.  Kourakis CJ, in dissent, held that the Director’s application should be dismissed and the appeals of Stakaj and HN allowed.  The Chief Justice noted that he would have ordered retrials of Stakaj and HN on the charge of manslaughter only.

9. Upon receiving the reasons for judgment, counsel for Stakaj and HN submitted that the Court had proceeded to deal with the appeals of Stakaj and HN without hearing submissions from the parties as to the common form appeal grounds.  It was noted that the Court could, pursuant to the ground that the verdict was unreasonable against the weight of the evidence, substitute the verdict with an acquittal rather than ordering a retrial.  The Chief Justice noted that, in light of the orders of the majority, there would be no utility in hearing the defendants as to that ground of appeal.  However, the Court recalled its orders to allow the reasons to be amended to reflect that the defendants were not heard on all grounds of appeal. 

10. On 25 September 2015, the Court reconvened to deliver its amended orders and reasons.[1]  In his amended reasons, the Chief Justice stated that he would have set aside the convictions of manslaughter and listed the appeals of the defendants on the unreasonable verdict ground.  Prior to delivering those amended orders and reasons, counsel for Stakaj and HN made an oral application to be heard on the common form appeal grounds.   In the alternative, counsel requested that the Court hear submissions as to whether the Court should order an acquittal or a permanent stay, instead of a retrial, on the Director’s application.

    [1]    Case Stated on Acquittal (No 1 of 2015); R v Stakaj & N, H (2015) 123 SASR 523.

11. In respect of the first contention, counsel acknowledged that, on the reasons of the majority, there was no valid verdict from which an appeal could be lodged.  However, counsel contended that there was no logical explanation for dealing with the Director and defendants’ respective applications in a purely chronological manner.  Counsel also noted the language used by the majority in allowing the Director’s application:[2]

    For these reasons, we order that the verdicts of not guilty of murder recorded in the case of each defendant be quashed. We order that, in respect of each defendant, the conviction of manslaughter be quashed and their sentences be set aside. We order that, in the case of each defendant, there be a retrial on the charge of murder.

    [2]    Case Stated on Acquittal (No 1 of 2015); R v Stakaj & N, H (2015) 123 SASR 523, 571.

12. Counsel said that the phrase “quashed” and the fact that the jury’s verdicts became an order of a superior court of record suggested that the verdicts were not nullities.  On this basis, Counsel submitted that the Court had the power to entertain the defendants’ common form appeal grounds, including the ground that the conviction as to manslaughter was unreasonable against the weight of the evidence.   

13. In the alternative, counsel argued that the Court had an inherent jurisdiction to make an order for an acquittal or a stay pursuant to the Director’s application.

    The Order of the Proceedings

14. In my view, it is appropriate and logical to consider the proceedings as a whole chronologically. The defendants’ right to appeal is governed by section 352(1)(a) of the Criminal Law Consolidation Act 1935 (SA), which provides:

    Appeals lie to the Full Court as follows:

    (a)     if a person is convicted on information—

    (i)    the convicted person may appeal against the conviction as of right on any ground that involves a question of law alone;

    (ii)     the convicted person may appeal against the conviction on any other ground with the permission of the Full Court or on the certificate of the court of trial that it is a fit case for appeal;

    (iii)     subject to subsection (2), the convicted person or the Director of Public Prosecutions may appeal against sentence passed on the conviction (other than a sentence fixed by law), or a decision of the court to defer sentencing the convicted person, on any ground with the permission of the Full Court;

15. It is to be noted that the section states that only a convicted person has a right to appeal or seek permission to appeal against that conviction. 

16. As I observed with Sulan J in our joint judgment, the trial verdicts were not arrived at by due process of law:[3]

    The difficulty confronting this argument is that there have been no valid acquittals. The acquittals entered onto the court record were not arrived at by due process of the law. No valid verdicts of acquittal were reached at all. The verdicts returned were in noncompliance of the mandatory terms of s 57. The orders of the Court were made following invalid verdicts.

    [3]    Case Stated on Acquittal (No 1 of 2015); R v Stakaj & N, H (2015) 123 SASR 523, 570.

17. If the defendants’ appeals had been heard first, allowed, and verdicts of acquittal entered, the matter would not have stopped there. Upon subsequently hearing the Director’s application, the Court would have been required to inquire into the validity of the jury verdicts. Upon reaching the conclusion that all verdicts were invalid, the Court would have been required to correct its record of the proceedings, quashing the trial verdicts of not guilty of murder and the convictions for manslaughter. As a consequence, the Court would also have been required to set aside any verdicts of acquittal entered on the appeals, which would have necessarily been found to be invalid as they were not based on a conviction as required by sections 352(1)(a) and 353(2) of the Criminal Law Consolidation Act. 

    Inherent Jurisdiction

18. Counsel for the defendants also contended that the Court should hear submissions as to whether the Court should order an acquittal or a permanent stay, rather than a retrial on the charge of murder.  Counsel contended that the Court had power to do so, on the Director’s application, pursuant to its inherent jurisdiction. 

19. In my opinion, the Court does not have inherent power to order an acquittal in these circumstances.  Inherent powers are concerned with giving the Court the power to enforce its rules of practice and to suppress any abuses of its process.[4]  The power to order an acquittal on appeal is statutory.[5]  As discussed above, the statutory provision is not enlivened without a valid conviction from which a defendant appeals.  It is to be noted that this point was not argued at the hearing of the Director’s application as counsel determined to leave the matter until the hearing of the common form appeal grounds.

    [4]    Connelly v Director of Public Prosecutions [1964] AC 1254, 1301.

    [5]    Criminal Law Consolidation Act 1935 (SA) section 353(2).

20. It would also have been inappropriate to order a permanent stay in these proceedings.  The Court undoubtedly has an inherent power to order a stay of proceedings in cases of abuse of process where that is the most suitable order to prevent any injustice to the accused.  On the appeal, it was not suggested that, in the event the Court orders the verdicts to be quashed on the Director’s application, a stay of the proceedings would be a more appropriate remedy than an order for a retrial.  In the circumstances, the interests of justice require that a new trial is held on the Information in accordance with due process of law.  The comments of the High Court in Dupas are instructive:[6]

    A further consideration is the need to take into account the substantial public interest of the community in having those who are charged with criminal offences brought to trial, the “social imperative” as Nettle JA called it, as a permanent stay is tantamount to a continuing immunity from prosecution. Because of this public interest, fairness to the accused is not the only consideration bearing on a court’s decision as to whether a trial should proceed.

    [Footnotes omitted.]

    [6]    Dupas v The Queen (2010) 241 CLR 237, 251.

21. This is not a case where the issue with the jury verdicts was discovered some time after an acquittal had been entered.  One would understand why a court may consider granting a permanent stay in such circumstances.  In the present case, the issue was brought to the attention of defence counsel within eight days of the jury’s verdicts, prior to the lodging of any appeal against conviction.  The Court concluded that there was a serious irregularity with the jury verdicts such that they ought to be set aside.  This had the consequence of extinguishing any right of appeal of the defendants and any entitlement to an acquittal.  The offences with which the defendants were charged are extremely serious.  In these circumstances, it would have been wholly inappropriate to allow the defendants the benefit of a permanent stay.  There is no unfairness to, or injustice suffered by, the defendants in ordering a retrial.  It is open to the defendants to make an application that there is no case to answer before a single Judge of this Court on the retrial. 

22. It is for these reasons that I joined with the Chief Justice in refusing the defendants’ applications to be heard on the ground of appeal relating to the verdict being unreasonable against the weight of the evidence.

23. SULAN J: I agree with the reasons of Gray J.