R v Tropeano - [2015] SASCFC 29

Supreme Court of South Australia
(Court of Criminal Appeal)
R v TROPEANO
[2015] SASCFC 29
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Parker and The Honourable Auxiliary Justice Duggan)
27 March 2015
CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - GENERALLY
CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE - MISDIRECTION OR NON-DIRECTION
CRIMINAL LAW - PROCEDURE - VERDICT - UNANIMOUS AND MAJORITY VERDICTS
The applicant and two co-accused were presented for trial on an information in the District Court which alleged an offence of aggravated causing harm with intent to cause harm. They were each convicted of that offence by majority verdict. The applicant now brings an application for permission to appeal against his conviction.
The charge arose out of an incident which took place at the Red Square nightclub on 18 December 2011. At this time the applicant was the general manager of the nightclub. Both of the applicant’s co-accused were employees of the club. It was alleged that the offence was committed against Mr Polec who was a patron of the club and had gone there with some friends.
At approximately 4.30 am Mr Polec was involved in an incident on the dance floor of the nightclub. As a result he was escorted out of the club by a member of the club staff.
According to the prosecution case, an altercation involving a number of men took place at the time of the eviction. Mr Polec was knocked to the ground. He was restrained while he was on the ground. The two co-accused punched him on a number of occasions while the applicant shielded this incident from view. Two other men unconnected with the club also assaulted Mr Polec. Mr Polec tried to get up but was forced to the ground by several men including the applicant. The prosecution alleged that while Mr Polec was on the ground on this occasion the applicant stomped on him. The police then arrived at the scene. Mr Polec was taken to hospital. His injuries included a fractured jaw, a broken tooth and bruising and swelling to the face.
At trial the applicant denied attacking Mr Polec. He said that his staff restrained Mr Polec so that the police could detain him when they arrived. He said he was protecting Mr Polec from others who might attack him. He said neither he nor his staff assaulted Mr Polec either by stomping on him or in any other way.
The prosecution alleged that the applicant and the co-accused were involved in a joint criminal enterprise to cause harm to Mr Polec.
The applicant seeks permission to appeal on the following 10 grounds:
1. The Learned Trial Judge failed to adequately direct the jury on the principles of joint enterprise.
2. The Learned Trial Judge erred in permitting the prosecution witnesses to provide a commentary and/or interpretation of the CCTV footage.
3. The Learned Trial Judge failed to direct the jury adequately or at all as to the use that could be permissibly made of the evidence referred to in Ground 2.
4. The Learned Trial Judge failed to adequately direct the jury on the significance and effect of the evidence of Professor Spring.
5. The Learned Trial Judge failed to adequately direct the jury on the concept of lawful restraint.
6. The Learned Trial Judge failed to adequately direct the jury to separately consider the case for and against the applicant.
7. The Learned Trial Judge failed to adequately direct the jury on causation.
8. The Learned Trial Judge erred in failing to direct the jury that the prosecution were required to establish that the proved acts of the applicant and the co-accused had to be the sole or substantial cause of the complainant’s jaw fractures and broken tooth before they could find the applicant and his co-accused caused the complainant harm.
9. The Learned Trial Judge failed to direct the jury adequately or at all as to the degree of intoxication of the prosecution witnesses Polec, Pett and Scherwitzel and the effect that the consumption of alcohol could have on their reliability as witnesses.
10. The Learned Trial Judge failed to direct the jury on the need for unanimity of their verdict and the circumstances in which they were permitted to return a majority verdict.
Held (per Duggan AJ, granting permission and allowing the appeal):
1. It was necessary for the trial Judge to explain to the jury the steps which had to be considered in relating the concept of a joint criminal enterprise to the substantive offence charged on the information and then to apply those directions to the evidence in the case.
2. It was necessary for the Judge to direct the jury’s attention to the evidence of third party involvement and emphasise the importance of making findings of fact as to the actions of the accused and whether they caused the harm alleged in the charge.
3. The issue of assisting in a lawful arrest was a central issue in the case for the applicant. A careful direction was required in accordance with the test prescribed in s 15A of the Criminal Law Consolidation Act 1935 (SA).
4. The jury should have been specifically directed that they were not to take into account any evidence which simply described incidents on a video which were not illustrative of events which had been perceived by the witness at the time of their occurrence. Nevertheless, the failure to give such a direction did not occasion a miscarriage of justice.
5. Sufficient directions were given to the jury on the nature of expert evidence and how it should be approached.
6. In a case where there is evidence against one accused which is inadmissible against another accused it is important to warn the jury against the improper use of such evidence. This was not such a case. The evidence led by the prosecution was admissible against all accused.
7. It was unnecessary for the prosecution at the commencement of the trial to identify the precise nature of the violent actions which were claimed to result in harm. It is the harm caused which is an element of the offence and it was clear from the outset of the trial that it was alleged this harm took place in the course of an incident identified by reference to time and place.
8. Although a direction should have been given on the relevance of the effects of intoxication on the reliability of the evidence of the three witnesses to whom references had been made, references in the addresses of counsel to the effects of intoxication on the ability of the witnesses to observe and recall events accurately ensured that this consideration would have been overlooked by the jury.
9. The manner in which a jury is to be directed on the issue of majority verdicts should be left to the discretion of the trial Judge.
Criminal Law Consolidation Act 1935 (SA) s 15A, s 24; Juries Act 1927 (SA) s 57, s 59; Juries Act 2000 (Vic) s 46; Jury Act 1977 (NSW) s 55F, referred to.
Alford v Magee (1952) 85 CLR 437; R v Tangye (1997) 92 A Crim R 545; R v Kostic & Stefanopolous (2004) 151 A Crim R 10; R v Bosworth & Ors (2007) 97 SASR 502; R v Yusuf (2005) 153 A Crim R 173; R v Bennett (2004) 88 SASR 6; R v Roberts (2011) 111 SASR 100; Taylor v Chief Constable of Cheshire [1986] 1 WLR 1479; R v Sitek (1987) 26 A Crim R 421; Police v Cooke [2010] SASC 357; R v Arden [2004] VSCA 131; Murdoch v The Queen (2007) 167 A Crim R 329; R v Daniel (2010) 207 A Crim R 449; R v Bedi (1993) 61 SASR 269; R v Harrison (1997) 68 SASR 304; R v K (1997) 68 SASR 405, considered.

WORDS AND PHRASES CONSIDERED/DEFINED
"joint enterprise", "lawful restraint", "causation", "intoxication", "majority verdict"

R v TROPEANO
[2015] SASCFC 29
Court of Criminal Appeal: Kourakis CJ, Parker J and Duggan AJ

KOURAKIS CJ: I would allow the appeal on Grounds 1, 5 and 7 for the reasons given by Duggan AJ as supplemented by the additional remarks appearing below.
I would dismiss Grounds 2, 3, 4, 6, 8, 9 and 10 also for the reasons given by Duggan AJ.
The complaints made in Ground 1 about the directions given on joint enterprise are illustrative of the difficulty in applying that basis of secondary liability to spontaneous criminal conduct. There is much to be said for putting the prosecution case against those accused other than the perpetrator only on the basis of aiding and abetting. In that way the focus of the prosecution case, and the directions to the jury, remains firmly on the conduct of each accused and the knowledge and intention which accompanied that conduct.
In the circumstances of the case against Mr Tropeano, the jury needed to consider and determine the following primary issues:
·whether or not Mr Tropeano stomped on Mr Polec;
·whether, and to what extent, any of the co-accused inflicted harm on Mr Polec;
·how much Mr Tropeano saw of the conduct of the co-accused;
·whether Mr Tropeano acted in a way which facilitated the infliction of harm by any of the co-accused;
·if so, with what intention did Mr Tropeano give that assistance.
Each of those issues raises a number of subsidiary factual questions. Merely leaving the jury with the respective cases of the prosecution and the defence did not sufficiently instruct the jury on the process of sequential decision making which an application of the law to the facts required.
I approach the failure to give directions as to the causation (Ground 7) as an aspect of the complaint in Ground 1. The jury cannot have failed to understand that if all of the injuries suffered by Mr Polec were caused by third persons acting before, and independently of, any involvement of Mr Tropeano, then the proper verdict was not guilty. However, the identification of some harm, caused by Mr Tropeano or the co-accused, was a critical step in the decision making process to which I referred in the preceding paragraph.
The application of s 15A of the Criminal Law Consolidation Act 1935 (SA) (the CLCA) (Ground 5) to such of the conduct of Mr Tropeano, or the co‑accused, which the jury were satisfied caused Mr Polec harm was a further necessary step in applying the law to the facts. The direction given by the Judge simply did not follow s 15A of the CLCA, it failed to direct the jury that reasonableness of the force used had to be judged on the circumstances as they were believed to be by Mr Tropeano. It is not possible for this Court to conclude on the face of the transcript that the jury, so directed in accordance with the law, would necessarily have reached the same verdict.
PARKER J: I would allow the appeal on grounds 1, 5 and 7 for the reasons given by Duggan AJ and concur with the supplementary remarks made by Kourakis CJ. I would dismiss the remaining grounds of appeal.
DUGGAN AJ: The applicant and two co-accused, Jack Apostolidis and Wayne Ngaia were presented for trial on an information in the District Court which alleged an offence of aggravated causing harm with intent to cause harm contrary to s 24(1) of the Criminal Law Consolidation Act 1935 (SA). They were each convicted of that offence by majority verdict. The applicant now brings an application for permission to appeal against his conviction. The application was heard on the basis that if the Court decides to grant permission to appeal, it will treat the hearing of the application for permission as the hearing of the appeal.
The charge arose out of an incident which took place at the Red Square nightclub on 18 December 2011. At this time the applicant was the general manager of the nightclub which is situated in Rosina Street off Hindley Street, Adelaide. Both co-accused were employees of the club. It was alleged that the offence was committed against Mr Polec who was a patron of the club and had gone there with some friends.
At approximately 4.30 am Mr Polec was involved in an incident on the dance floor of the nightclub. As a result he was escorted out through the back door of the club and into Rosina Street by a member of the club staff.
According to the prosecution case the applicant and Mr Apostolidis were in Rosina Street at the time of the eviction. An altercation involving a number of men took place. Mr Polec and Mr Apostolidis were knocked to the ground. According to the prosecution case, Mr Polec punched Mr Apostolidis. Mr Polec was then restrained while he was on the ground. Mr Apostolidis and Mr Ngaia punched him on a number of occasions while the applicant shielded this incident from view. Two other men unconnected with the club also assaulted Mr Polec. Mr Polec tried to get up but was forced to the ground by several men including the applicant and Mr Apostolidis. The prosecution alleged that while he was on the ground on this occasion the applicant and Mr Apostolidis stomped on him. The police then arrived at the scene. Mr Polec was taken to hospital. His injuries included a fractured jaw, a broken tooth and bruising and swelling to the face.
At trial the applicant denied attacking Mr Polec. He said he saw Mr Polec punch Mr Apostolidis outside the club. He said that his staff restrained Mr Polec so that the police could detain him when they arrived. He said his staff restrained Mr Polec as he sat against the eastern wall of Rosina Street. He said he was protecting Mr Polec from others who might attack him. He said although Mr Apostolidis and Mr Ngaia restrained Mr Polec, their actions were resisted by Mr Polec. He said that, despite Mr Polec’s resistance, neither he nor his staff assaulted Mr Polec either by stomping on him or in any other way.
The prosecution alleged that the applicant and the co-accused were involved in a joint criminal enterprise to cause harm to Mr Polec. It was alleged that in furtherance of that joint enterprise the applicant assaulted Mr Polec and also shielded from view other assaults on him by the co-accused.
The evidence led by the prosecution was comprised mainly of a video recording by a closed circuit television (CCTV) camera facing Rosina Street and evidence from Mr Polec and his companions on the evening, Mr Pett and Mr Scherwitzel. The three accused also gave evidence.
Ground 1
The first ground of appeal complains that the learned trial Judge failed to adequately direct the jury on the principles of joint enterprise. It was argued that the Judge:
1failed to adequately define the scope of the joint enterprise;
2failed to adequately direct the jury as to the nature of the agreement the prosecution had to prove given the offence charged comprised of, amongst other things, an element of specific intention;
3failed to adequately define the alleged role of the applicant in the joint enterprise;
4failed to adequately direct the jury on the interrelationship between the concept of lawful restraint and joint enterprise.
The trial Judge gave the following direction on the nature of a joint criminal enterprise:[1]
If two or more persons join together in a joint criminal enterprise every act done and words spoken in furtherance of that enterprise by any one of them is in law done and spoken by all of them. In other words, the combined actions of two or more persons with a common criminal intent in implementing an arrangement previously agreed upon by them may make them all guilty of the resulting crime.
The law considers that in such circumstances each person is acting both on his own account and on behalf of the other person or persons concerned. The concept of a joint criminal enterprise implies that the persons concerned are, as it were, acting as a team to achieve a mutually-agreed result.
The following example illustrates this principle. If two persons agree to break into a house and further agree that one of them will enter the house and steal property and that the other would remain outside in a car with the engine running, keeping watch, and that agreement is then implemented then both can be found guilty of the crime. The person waiting outside in the car could be equally guilty with the person who broke into the house despite the fact that he did not set foot in the house.
By way of contrast, the mere presence of a person at or near the scene of a crime being committed by another, whatever may be that person’s knowledge of or attitude towards the commission of the crime, does not, without more, make him guilty under this principle. To implicate that person his presence must be by agreement with the other for the purpose of furthering and achieving the commission of the crime. The agreement might be the result of a carefully worked-out plan or it might be made on the spur of the moment and without a word spoken. However it is arrived at, if you are to convict the accused on the basis of a joint criminal enterprise then the joint enterprise must be established to your satisfaction beyond reasonable doubt.
A joint criminal enterprise is a matter of inference from proved conduct. You look at the facts proved in respect of each of the accused in the light of the evidence as a whole, including any explanation which he may have given, then you decide whether those facts in combination justify the inference or conclusion beyond reasonable doubt that there must have been a joint criminal enterprise between the accused to commit the offence.
[1] AB 130 – 131.
His Honour then directed the jury on the elements of the offence of aggravated causing harm with intent to cause harm. He said:[2]
[2] AB 131 – 132.
I now turn to the ingredients of aggravated causing harm with intent to cause harm. The accused are charged with the offence of aggravated causing harm with intent to cause harm. Particulars of the charge are that on 18 December 2011 at Adelaide they caused harm to Daniel Polec, intending to cause him harm. The particulars go on to allege the aggravating factor, namely that they were in company with each other while committing the offence. To establish the charge against the accused, the prosecution is required to prove each of five separate ingredients. Each ingredient must be proved beyond reasonable doubt and you will see when you get the written copy of the ingredients that each ingredient has a highlighted or bold part of the ingredient and that is the critical part of that particular ingredient.
I will repeat that: to establish the charge against the accused, the prosecution is required to prove each of five separate ingredients. Each ingredient must be proved beyond reasonable doubt.
The first ingredient is that the accused caused harm to Mr Polec. That means that it must be proved that the accused’s conduct is the sole cause of the harm or it substantially contributes to the harm.
The second ingredient is that harm was caused to Mr Polec. The harm which is caused may be physical or mental harm. Physical harm includes unconsciousness, pain, disfigurement and infection with a disease. Cuts, fractures and swellings would also amount to harm.
The third ingredient is that the accused in so acting, acted deliberately as opposed to accidentally.
The fourth ingredient is that the accused must have acted unlawfully. I tell you that it is lawful for a citizen to temporarily detain someone who is believed to have committed a crime pending the arrival of the police. Such detention will be lawful only so long as no more than reasonable force in the circumstances is used to detain someone.
The fifth ingredient is that at the time the accused caused harm to Mr Polec they intended to cause him harm.
The Crown case is that the accused acted jointly to commit this offence. Thus it is that they are charged with aggravated causing harm.
To find the accused guilty of aggravated causing harm with intent to cause harm you would have to be satisfied beyond reasonable doubt of the aggravating factor, namely that they acted jointly and together to commit the crime.
I have already explained the concept of joint enterprise. If you were not satisfied that the accused acted jointly you would find each accused not guilty of the charge of aggravated causing harm with intent to cause harm. That is because you would not be satisfied of the aggravating factor of their acting together.
However, in that event you would have to consider the case of each accused to see whether or not you are satisfied beyond reasonable doubt that the individual accused was guilty of an alternative offence of simply causing harm with intent to cause harm.
The ingredients of this alternative offence are the five ingredients I have just referred to. You would in this situation review the evidence relating to each individual accused and decide whether or not you were satisfied beyond reasonable doubt that that individual accused committed the offence of simply causing harm with intent to cause harm.
In this situation you would no longer be considering whether or not the individual accused was part of a joint enterprise with anyone else.

At this point in the summing up the trial Judge summarised the cases for the prosecution and the defence. When commenting on the case against the applicant the trial Judge said:[3]
The Crown case is that Mr Tropeano was part of the joint enterprise with Mr Apostolidis and Mr Ngaia to cause harm to Mr Polec. He employed both men. Although it was not part of their job descriptions as fire wardens and safety officers, Mr Tropeano permitted the two of them to join in the restraint of Mr Polec. He stood around with others shielding what was going on when Mr Polec was sitting on the ground with his back against the wall. The footage shows him glancing at times when the Crown says Mr Apostolidis and Ngaia were punching. The Crown case is that there was a second stage to the joint enterprise to cause harm to Mr Polec.
After being punched by Mr Apostolidis and Mr Ngaia while sitting on the ground, Mr Polec tried to break free. He is brought back first to the wall and then to the ground head first by several people, including Mr Tropeano and Mr Apostolidis. Once on the ground both Mr Tropeano and Mr Apostolidis step on or stomp on him. The Crown case is that you can see that stomping motion by both Mr Tropeano and Mr Apostolidis.
The Crown case is that just before the police arrived Mr Apostolidis bends down to further attack Mr Polec but he does not do so because Mr Tropeano comes over to warn him and tell him that the police have arrived.
[3] AB 134.
The trial Judge went on to summarise the case for each accused. When dealing with the case for the applicant his Honour said:[4]
The case for Mr Tropeano is that he, himself, never touched Mr Polec other than to do no more than was reasonably necessary in the circumstances to restrain Mr Polec until the police arrived. He had seen Mr Polec punch Mr Apostolidis outside the side doors of the club. His staff set about restraining Mr Polec until the police could come along and deal with him for that assault. His staff got Mr Polec in a position sitting against the eastern wall of Rosina Street. Mr Tropeano and the others stood around Mr Polec to protect Mr Polec as best they could from others who might attack him and also to protect others from him if he should try to attack them. Mr Polec was merely being kept there for the legitimate purpose of a citizen’s arrest until the police came along. Mr Apostolidis and Mr Ngaia were among those restraining Mr Polec in that position. Mr Polec was resisting the restraint. During that part of the restraint no one attacked Mr Polec. In particular Mr Tropeano did not attack Mr Polec nor did Mr Apostolidis or Mr Ngaia. Not only was Mr Tropeano not part of any joint enterprise to assault Mr Polec causing harm but there was no assault being committed by anyone.
At the point where Mr Polec tries to break through, several people, including Mr Apostolidis and Mr Tropeano, took Mr Polec first back to the wall and then down to the ground. At no stage whilst Mr Polec was being brought to the ground or before the police arrived did he or anyone else do anything other than what was reasonably necessary to restrain Mr Polec until the police arrived. No-one stepped or stomped on him.
[4] AB 135.
The next stage of the summing up consisted of summaries of the addresses of counsel. The trial Judge repeated the prosecution assertion that the accused joined in a joint enterprise and that, acting together, they caused Mr Polec harm with intent to cause him harm. When summarising the prosecutor’s address he said:
Mr Powell said that it cannot be suggested that there was not time to form the common purpose to assault. A common purpose such as this can be formed spontaneously in a quick moving situation. There was an unspoken understanding between them. People knew what to do. Zac and the man in the shorts, stood around letting Mr Apostolidis get through to Mr Polec. Mr Ngaia took up a position on the other side and Mr Tropeano was in charge, fending others away and looking at what was going on. Mr Powell submitted to you that you know a joint enterprise when you see it. That is what you saw on the CCTV.
Although the facts of the case came within a narrow compass, the issues raised gave rise to some complexity. It was necessary for the trial Judge to instruct the jury on joint criminal enterprise, the elements of the offence, the law relating to lawful restraint and the issue of causation bearing in mind that others unconnected with the three accused assaulted Mr Polec. It was then necessary to guide the jury as to the manner in which these principles were to be applied to the facts led in evidence.
The advice of Sir Leo Cussen referred to by the High Court in Alford v Magee[5] as “the great guiding rule” was that “the law should be given to the jury not merely with reference to the facts of the particular case but with an explanation of how it applied to the facts of the particular case". This prescription has been followed in many authorities including a number of cases in which joint criminal enterprise has been alleged. [6]
[5] (1952) 85 CLR 437 at 466.
[6] R v Tangye (1997) 92 A Crim R 545 per Hunt CJ at 557 – 558; R v Kostic & Stefanopolous (2004) 151 A Crim R 10; R v Bosworth & Ors (2007) 97 SASR 502; R v Yusuf (2005) 153 A Crim R 173; R v Bennett (2004) 88 SASR 6 at 13.
In the present case the approach of the trial Judge was to explain the legal principles relating to joint criminal enterprise and the elements of the substantive offence without setting out for the jury the manner in which those principles were to be applied to the circumstances of the case. In my view, this requirement was not satisfied by summarising the cases for the prosecution and the defence and referring to the arguments presented in support of those cases.
It was necessary to explain to the jury the steps which had to be considered in relating the concept of a joint criminal enterprise to the substantive offence charged on the information and then to apply those directions to the evidence in the case.
As Doyle CJ pointed out in R v Bennett,[7] it is necessary in a case in which joint criminal enterprise is alleged for the trial Judge to give the jury assistance on how they might decide whether an agreement or understanding should be inferred from the conduct of the accused and when the agreement or understanding was reached.
[7] (2004) 88 SASR 6 at 15 - 16.
It was essential for the jury to make findings of fact in relation to the actions of the three accused. These findings were relevant to the key issues referred to above. The jury were required to determine whether there was a joint criminal enterprise by reference to those items of evidence which, in their combined effect, might support the inference that such a criminal purpose existed. The method of the trial Judge in restricting the discussion of the facts to the arguments of counsel fell short of equipping the jury to resolve this issue.
The arguments of counsel presented an all or nothing approach. However, it was necessary for the jury to first make findings of fact relevant to the actions of each accused and then proceed to a consideration as to whether an inference could be drawn from those facts that a joint criminal enterprise had been in existence. This could only be done by clearly identifying the facts relevant to proof of a joint criminal enterprise and explaining to the jury the task of drawing inferences in order to determine whether the case for a joint criminal enterprise was made out.
In my view, the trial Judge failed to adequately direct the jury as to the manner in which the principles of joint criminal enterprise were to be applied to the circumstances of the case.
Ground 7
If a joint criminal enterprise was proved, the jury nevertheless had to decide whether it resulted in harm to Mr Polec. Ground 7 complains of inadequate directions on this issue of causation.
As stated above, there was evidence at the trial that two members of the public assaulted Mr Polec during the altercation outside the nightclub. It was not suggested that they acted in concert with the three accused. One of them, Mr Mattner, who delivered an uppercut to Mr Polec’s head, was later convicted of an assault in relation to this incident. It appears from the video that another man who was dressed in a blue tracksuit knocked Mr Polec to the ground shortly after he was evicted from the nightclub.
When instructing the jury on the elements of the offence charged the trial Judge stated:[8]
The first ingredient is that the accused caused harm to Mr Polec. That means that it must be proved that the accused’s conduct is the sole cause of the harm or it substantially contributes to the harm.
[8] AB 131.
Later in the summing up his Honour said:[9]
I remind you of the ingredients of the charge that the prosecution must prove, that the actions of the accused caused or substantially contributed to the harm. That harm may be physical or mental and includes fractures, cuts, bruises, swellings and even pain.
[9] AB 144.
As previously stated, the defence case was that none of the accused did anything which would cause harm to Mr Polec and in the course of the summing up the trial Judge reminded the jury of the following submissions by counsel for the applicant at the trial:[10]
Ms Powell concluded her address by reiterating the deficiencies in Mr Polec’s evidence. In particular she referred to the medical evidence about the jaw injuries, suggesting that they were occasioned by Mr Mattner and the blue tracksuit man. If the injuries and harm that Mr Polec suffered on the night were all caused by those two assaults then you would not be able to be satisfied of an essential ingredient of the charge against the accused. Ms Powell submitted that the three Crown witnesses were, between them, not reliable and there was nothing in the CCTV footage that does not support Mr Tropeano’s evidence. In those circumstances you should acquit her client.
[10] AB 144.
In my view, more was required than reminding the jury of these submissions. Merely because there was some evidence of third-party involvement in the assault does not exclude harm caused by the actions alleged against the three accused. The jury would have understood that, before convicting the applicant, they had to find that those actions caused harm and that they were carried out as part of a joint criminal enterprise.
Nevertheless, I consider that it was necessary for the Judge to direct the jury’s attention to the evidence of third party involvement and emphasise the importance of making findings of fact as to the actions of the accused and whether they caused the harm alleged in the charge. The jury was not bound by the level of involvement argued for by the prosecution.
In my view the jury should have been instructed on this aspect of applying the law to the facts as they found them to be.
Ground 5
The requirement of unlawful conduct was a crucial issue in the case. The directions on this element of the offence are the subject of ground 5, which it is convenient to deal with at this stage.
It has been pointed out that, apart from denying certain specific acts of violence to Mr Polec, the applicant claimed that his actions and those of the co-accused were intended to restrain Mr Polec until the police arrived. This necessitated a direction in accordance with s 15A(1) of the Criminal Law Consolidation Act 1935 (SA) which relevantly provides as follows:
15A—Defence of property etc
(1)It is a defence to a charge of an offence if—
(a)     the defendant genuinely believed the conduct to which the charge relates to be necessary and reasonable—
(i)to protect property from unlawful appropriation, destruction, damage or interference; or
(ii)to prevent criminal trespass to land or premises, or to remove from land or premises a person who is committing a criminal trespass; or
(iii)to make or assist in the lawful arrest of an offender or alleged offender or a person who is unlawfully at large; and
(b)     if the conduct resulted in death—the defendant did not intend to cause death nor did the defendant act recklessly realising that the conduct could result in death; and
(c)     the conduct was, in the circumstances as the defendant genuinely believed them to be, reasonably proportionate to the threat that the defendant genuinely believed to exist¹.
…
Notes—
1       See, however, section 15C. If the defendant establishes that he or she is entitled to the benefit of that section, this paragraph will be inapplicable.
Section 15A(1)(a) provides a subjective test for the threshold requirement of belief that the conduct of the defendant is necessary and reasonable.
A further requirement in s 15A(1)(c) is objective in that the conduct must be reasonably proportionate to the purpose for its use. However the circumstances relevant to this limb must be those which the defendant genuinely believed to exist. It is for the prosecution to disprove a claim to lawfulness based on these provisions.
The trial Judge gave the following direction on the element of unlawfulness:[11]
The fourth ingredient is that the accused must have acted unlawfully. I tell you that it is lawful for a citizen to temporarily detain someone who is believed to have committed a crime pending the arrival of the police. Such detention will be lawful only so long as no more than reasonable force in the circumstances is used to detain someone.
[11] AB 132.
The words “who is believed to have committed a crime” are at least ambiguous in that they do not necessarily focus on the belief of the defendant. In any event the direction does not explain that the section requires an assessment of the belief of the defendant as to the necessity and reasonableness of the conduct and that the enquiry as to whether the conduct was reasonably proportionate is to be made by reference to the circumstances as the defendant genuinely believed them to be. Nor was any direction given as to how the jury would go about applying this test to the circumstances of the case.
At the conclusion of the summing up Mr Anders, for the accused Mr Apostolidis, requested a direction in terms of s 15A. This request was declined by the trial Judge. It is clear from this discussion that the direction on lawful restraint had not been given with s 15A in mind.
The issue of assisting in a lawful arrest was a central issue in the case for the applicant. In my view, a careful direction was required in accordance with the test prescribed in s 15A. I cannot agree with the submission of the Director of Public Prosecutions that the direction which was given was favourable to the applicant to an extent rendering it unnecessary for this Court to intervene. Whereas part of the test in the section is objective, it was important to bring to the jury's attention the relevance of the applicant’s belief in the respects referred to in the section. The failure to direct in accordance with the section is an error of law.[12]
[12] R v Roberts (2011) 111 SASR 100 at 117.
Grounds 2 and 3
Ground 2 asserts that the learned trial Judge erred in permitting the prosecution witnesses to provide a commentary and interpretation of the CCTV coverage. Ground 3 complains of a failure to direct the jury adequately or at all as to the use that could be made of the evidence referred to in Ground 2.
The video recording of the CCTV coverage was admitted as an exhibit[13] in the course of the examination-in-chief of Mr Polec. After he had been asked some questions in relation to what was shown on the video, there was an objection to commentary on the footage by the witness. The witness had previously stated that he was hit after he emerged from the door of the club and that he had no further recollection of the incident in Rosina Street until he woke up in the middle of the street in a pool of blood in the presence of police officers.
[13] Exhibit P4.
While being shown footage from the video Mr Polec began commenting on what was shown in the video including what he claimed to be someone hitting and stomping on him.[14] At this point Mr Anders objected to the witness making comments about incidents which were alleged to have occurred at a time during the incident when, on his own version, he was unconscious. There was then a discussion as to the permissible limits of the witness’ comments on the footage.
[14] T103.
It seemed to be agreed in the course of the discussion that the witness should not be permitted to comment on what was portrayed in the video if he in fact had no independent recollection of those incidents.
Despite this discussion there were occasions when Mr Polec and other prosecution witnesses who followed him did no more than describe events which they saw on the video.
Mr Polec stated that he could see on the video a man in a maroon shirt (Mr Apostolidis) and then commented:[15]
I'm getting hit there … He just stomped on my head, whoever that was, and then he stomped on my head.
[15] T103.
Later in his evidence Mr Polec said that at one stage he was being hit to the head. While looking at the video he gave the following evidence:[16]
Q.As you look at this vision the blows you received were struck by which of those persons.
A.The guy in the maroon shirt.
[16] T120.
In later evidence Mr Polec’s attention was drawn to a man in the video identified by other evidence as the applicant and the witness said:[17]
A.Yeah, looks like had a headlock kind of thing …
[17] T141.
In re-examination of Mr Polec the following evidence was given:[18]
A.So you have got the guy in the maroon shirt there behind the guy in the white. That's me leaning up against the wall there.
Q.Where the cursor is now?
A.Yeah, just watch there and you’ll see. You can just see his hand swinging like. There you go.
Mr Polec had no independent recollection of these incidents.
[18] T264.
In other evidence Mr Scherwitzel, one of Mr Polec's companions on the evening, gave the following evidence while watching the video:[19]
[19] T414.
Q.And what do you say you noticed at that point.
A.You can see like that guy's covering whatever, you can see the guy's gone behind punching him.
Q.Who do you see punching him.
A.The guy in the maroon top.
Q.Is that something that you recall seeing while you were being held.
A.No, all I seen when I was being held down was him getting stomped on. So what I'm telling you now is what I'm seeing now.
Q.So you're describing what you're watching on the video.
A.Yes.
At one stage in his evidence the witness Pett describes events by looking at the video footage but it is not clear whether he is recalling events or simply describing what is apparent on the video.[20]
[20] T302.
No objection was taken to the admission of the video as evidence. It was admissible as real evidence depicting events which formed the basis of the charge against the applicant.[21] Photographs may be used in the same way.[22] What is depicted in a video or photographs may be used for a number of purposes including establishing the circumstances of particular evidence, the layout of the scene of an incident and the identification of persons involved in the incident.[23]
[21] Taylor v Chief Constable of Cheshire [1986] 1 WLR 1479; R v Sitek (1987) 26 A Crim R 421.
[22] Police v Cooke [2010] SASC 357 at [32].
[23] R v Arden [2004] VSCA 131; Murdoch v The Queen (2007) 167 A Crim R 329.
Nevertheless, it was not disputed on appeal that, in a case such as the present, a witness should not be permitted to simply describe incidents on a video which were not illustrative of events which had been perceived by the witness at the time of their occurrence. The evidence summarised above falls into this category and was inadmissible. It seemed clear from the outset that there was a danger of the witnesses giving such evidence and it would have been appropriate for steps to be taken to minimise that risk.

The only reference in the summing up to this difficulty occurred when the trial Judge summarised points made in the address by counsel for the applicant. His Honour said:[24]
She [the applicant’s counsel] emphasised that even after he looked at the video he conceded that he had no recollection of being up against the wall and he had no recollection of making an attempt to get away. That being so, she said, you should treat his evidence with the special care.
I tell you that if you think that Mr Polec is only telling you about what he, and therefore you, can see on the video, then of course it is your own conclusion that you should rely on. That applies to any witness, even Professor Spring, although of course in his case you do have to bear in mind his expertise.
[24] AB 142 – 143.
In my view, the jury should have been specifically directed that they were not to take into account any evidence which came into this category. Nevertheless, bearing in mind the nature of the comments made by the witnesses and the trial Judge’s observation just referred to, I do not consider that a miscarriage of justice occurred.
Ground 4
Ground 4 states that the learned trial Judge failed to adequately direct the jury on the significance and effect of the expert evidence of Professor Spring.
This witness was called as part of the case for the applicant. He is a scientist with a background of teaching biomedical and forensic photography. He has given evidence in courts in South Australia and elsewhere in cases in which video footage or photographs have been presented as evidence in criminal trials.
Professor Spring gave evidence concerning some of the problems which can make CCTV evidence unreliable. He referred to the positioning of the camera and the difficulties this may cause with depth perception. The witness also said that the quality of the footage will depend upon the number of frames per second recorded. He said that films and television programmes are recorded at between 24 and 30 frames per second. If the filming captures less than 24 frames per second there will be some “jerkiness”. He said that the frame rate of the video footage in the present matter was approximately 12 frames per second. One of the effects of this is that the image can become slightly blurred.
Professor Spring observed that at one point in the scuffle outside the nightclub the video depicted the applicant holding Mr Polec’s upper body to avoid him hitting the ground head first which, it was argued, was consistent with the applicant acting with restraint pending the arrival of the police.
In another part of his evidence Professor Spring described the alleged action of the applicant in stomping on or kneeing Mr Polec as, in fact, consistent with the applicant stepping over him.
The trial Judge alluded to the evidence of Professor Spring on a number of occasions during the summing up. At the commencement of the summing up he made some general comments about expert witnesses. He said:[25]
I have spoken about the ways in which you might go about assessing the credibility of witnesses. I now want to say something about your assessment of expert evidence. In this trial you have heard evidence from Professors Spring and White, who both bring to the court a specialist expertise and experience. Professor Spring is an expert in forensic photography and Professor White is an expert in pharmacology. Ultimately, you treat their evidence in the same way that you do that of non-expert witnesses. You are entitled to accept or to reject their evidence in the same way. You are entitled to accept a part and reject a part of their evidence but you do have to bear in mind the expertise and experience that each of those witnesses brings to the court.
[25] AB 130.
When summarising the submissions made on behalf of the applicant, the trial Judge said:[26]
The claim that the video shows Mr Tropeano stepping or stomping on Mr Polec is wrong. As Professor Spring has explained, the action claimed by the Crown to be Mr Tropeano stepping on Mr Polec is not, in fact, stepping on him at all but is stepping over him. Professor Spring has explained how what can be seen is not consistent with stepping on but is, rather, consistent with stepping over Mr Polec. The deficiencies in the CCTV reproduction require expert explanation and once that explanation is understood, the fluid movement of Mr Tropeano’s leg means that no stomping occurred
[26] AB 135.
When summarising the submissions of the prosecutor his Honour said:[27]
Mr Powell concluded by reminding you that so far as the experts, Professors Spring and White, are concerned you treat their evidence in the same way that you do with other witnesses although you do take account of their expertise. In respect of Professor Spring, Mr Powell says that you have, no doubt, received some education in how you view and understand CCTV footage but what you see remains to be a judgment for you to make.
[27] AB 140.
In a further summary of submissions made on behalf of the applicant the trial Judge said:[28]
Professor Spring has explained the limitations that the CCTV footage has; you are missing half of what actually happened and there is a human tendency to fill in the missing bits. Professor Spring told you about the blurring and the artefacts. There’s a fuzzy blur at certain points in the footage for that reason.
[28] AB 141.
I have already referred to the passage in the summing up[29] where his Honour directed the jury that it was for them to draw their own conclusions about what they saw on the video and that this applies when considering any witness, including Professor Spring, although in his case the jury would have to bear in mind his expertise.
[29] AB 143.
The trial Judge reminded the jury of the submissions made for the applicant in relation to the evidence of Professor Spring when he said that the fluid-like movement on the footage suggests that there was no stomping.[30] There was also reference in the summing up to a submission made by counsel for Mr Apostolidis reminding the jury of Professor Spring’s evidence concerning the infirmities of the CCTV.[31] The same evidence by Professor Spring was referred to again by the trial Judge when dealing with submissions made by counsel for Mr Ngaia.[32]
[30] AB 144.
[31] AB 146.
[32] AB 148.
In my view, sufficient directions were given to the jury on the nature of expert evidence and how it should be approached in relation to the evidence of Professor Spring. It is true that the references to the actual evidence were in that part of the summing up where his Honour summarised the arguments of counsel. Nevertheless, I consider that enough was said to remind the jury of the principal aspects of Professor Spring’s evidence and its relevance to the defence case. None of the defence counsel requested any further directions on this topic.
Ground 6
Ground 6 relates to directions given by the learned trial Judge when he referred to the separate consideration by the jury of the case relating to each accused.
At an early stage in the summing up the trial Judge said:[33]
It is absolutely important that you give separate consideration to the cases relating to each of the accused. Although it is alleged that the accused were each acting as part of a joint enterprise, that in no way means that you should not consider their cases separately. You will have appreciated that the evidence that relates to each is somewhat different and so that underlines the importance of treating their cases separately. It is really as if three trials are being heard at the same time.
[33] AB 129.
Later his Honour said:[34]
I will summarise the case for each accused separately. I repeat my direction that you must consider the case for and against each accused separately. It is as if there are three trials being heard at once.
[34] AB 134.
Towards the end of the summing up his Honour remarked:[35]
In conclusion, you will consider the cases of the accused separately in relation to the charged offence of aggravated causing harm with intent to cause harm, and if it becomes necessary, the alternative of simply causing harm with intent to cause harm. You will remember that the prosecution always bears the burden of proving each ingredient against each accused beyond reasonable doubt.
[35] AB 148.
The first complaint concerning these directions is that the trial Judge did not explain what he meant by the direction to consider the case against each accused separately.
It is common in a trial of multiple accused to direct the jury that a verdict of guilty or not guilty against one accused does not necessarily mean that the same verdict should be returned against a co-accused. It is in this sense that, in an appropriate case, juries are sometimes instructed to consider separately the case against each accused. It appears that this is what the trial Judge intended in the present case. I consider that it would have been appropriate for the trial Judge to explain that his exhortation to the jury was meant to convey what has just been explained. However I do not believe that the failure to do so could have contributed to a miscarriage of justice.
Of course in a case where there is evidence against one accused which is inadmissible against another accused it is important to warn the jury against the improper use of such evidence. But this was not such a case. Here the evidence led by the prosecution was admissible against all accused. Counsel for the applicant raised one possible exception, namely the events which took place inside the nightclub prior to Mr Polec’s eviction. There was no suggestion that the applicant witnessed these events as opposed to being told about them. However, in my view, that evidence was relevant and admissible against all accused as a fact in issue and did not involve any element of hearsay.
Mr Game SC, for the applicant, advanced the further argument on appeal that the directions could have given the jury the impression that they were not permitted to use the evidence of a co-accused as evidence in favour of the case of another accused. He drew attention to the trial Judge’s comment that the jury must consider the case “for and against each accused” separately.
In my view, there was no real risk of this meaning being conveyed bearing in mind the way in which the case was conducted, particularly the addresses of counsel for each accused. This is supported by the fact that none of the defence counsel requested further directions in relation to the topic of separate consideration.
Ground 8
Ground 8 complains that there was a change in the prosecution case in relation to the causing of harm and that this resulted in an unfair trial.
When explaining the elements of the offence in the course of his opening address the crown prosecutor said:[36]
The first thing the prosecution must prove is that Mr Polec suffered harm. The definition of 'harm' includes: injury, loss of consciousness, even simply pain is within the definition of 'harm'. In this case, as I mentioned, you will hear that as a result of the incident Mr Polec received a number of injuries, painful injuries. These included the fracture of his jaw, the broken tooth, and the bruising and swelling to his face and head. He also, you will hear, lost consciousness for a couple of brief periods of time. That is the first thing that he suffered harm. The second thing the prosecution must prove is that the accused caused the harm to Mr Polec. Now, each of them were involved, as I mentioned, in various physical acts, various acts of assault involving him, which included punching and stomping on him, the grabbing of him by Mr Tropeano at one point. These were acts we say that caused harm or at least much of it.
[36] T68.
In the course of a discussion between the trial Judge and counsel prior to the summing up counsel for the applicant at the trial requested the trial Judge to direct the jury that if there was a reasonable possibility that the injuries to Mr Polec were all caused by third parties the jury would have to acquit. The trial Judge agreed with that suggestion. The prosecutor then commented that if punches of the type depicted on the CCTV took place and Mr Polec was stomped on this would itself provide proof of harm being inflicted.
The trial Judge summed up on this issue as follows:[37]
The first ingredient is that the accused caused harm to Mr Polec. That means that it must be proved that the accused’s conduct is the sole cause of the harm or it substantially contributes to the harm.
The second ingredient is that harm was caused to Mr Polec. The harm which is caused may be physical or mental harm. Physical harm includes unconsciousness, pain, disfigurement and infection with a disease. Cuts, fractures and swellings would also amount to harm.
[37] AB 131 – 132.
Later his Honour said:[38]
Ms Powell concluded her address by reiterating the deficiencies in Mr Polec’s evidence. In particular she referred to the medical evidence about the jaw injuries, suggesting that they were occasioned by Mr Mattner and the blue tracksuit man. If the injuries and harm that Mr Polec suffered on the night were all caused by those two assaults then you would not be able to be satisfied of an essential ingredient of the charge against the accused
[38] AB 144.
It is apparent the jury were instructed that if all the harm was inflicted by third parties then the applicant would have to be acquitted. On the other hand, if the jury were satisfied that the applicant or others who were involved in a joint enterprise with him were responsible for part of the physical violence inflicted on Mr Polec it would be open to them to consider whether such violence constituted harm within the meaning of the definition in the Act. In my view, it was unnecessary for the prosecution at the commencement of the trial to identify the precise nature of the violent actions which were claimed to result in harm. It is the harm caused which is an element of the offence and it was clear from the outset of the trial that it was alleged this harm took place in the course of an incident identified by reference to time and place.
I would reject the suggestion that the conduct of the prosecution case in identifying the harm caused resulted in any unfairness to the applicant. However I believe the argument on this ground underscores in yet another way the importance of the fact finding exercise which the jury was required to undertake in order to determine what had been proved and whether harm resulted from those actions.
Ground 9
Ground 9 states that the learned trial Judge failed to direct the jury adequately as to the degree of intoxication of the prosecution witnesses Polec, Pett and Scherwitzel and the effect that the consumption of alcohol could have on their reliability as witnesses.
Mr Polec gave evidence that he consumed approximately 20 alcoholic drinks before the altercation in Rosina Street. There was evidence that Mr Pett consumed approximately 10 vodka drinks and Mr Scherwitzel consumed a six pack of beer and then eight or nine vodka drinks. In addition, Professor White, an expert on the effects of alcohol and drugs, was called by the applicant to give evidence on a number of matters including the impairment of memory occasioned by the consumption of alcohol.
Counsel for the respective accused commented on the relevance of alcohol consumption in relation to the reliability or otherwise of witnesses.
The trial Judge did not direct the jury on the relevance of the effects of intoxication on the reliability of the evidence of the three witnesses to whom references had been made. At one point in his summing up he referred to a comment by the prosecutor during his address that Mr Polec had suffered blows and consumed a lot of alcohol.
The relevance of intoxication in the assessment of the reliability of witnesses has been referred to in many cases. A number of those cases stress the importance of the trial Judge including a reference to this consideration in the summing up.[39]
[39] R v Daniel (2010) 207 A Crim R 449; R v Bedi (1993) 61 SASR 269.
In my view, such a direction should have been given in the present case. However there were references in the addresses of counsel to the effects of intoxication on the ability of the witnesses to observe and recall events accurately and it is doubtful that this consideration would have been overlooked. I am not satisfied that a miscarriage of justice was occasioned by the failure to give a direction on the effects of intoxication.
Ground 10
Ground 10 complains that the trial Judge did not direct the jury on the desirability of a unanimous verdict. Mr Game also argued that the circumstances in which the majority verdict was taken did not accord with the requirements of the Juries Act 1927 (SA).
In order to address this ground of appeal it is necessary to summarise the events leading up to the taking of the verdict.
After the completion of the summing up the jury retired to consider their verdict at 11.37 am. The jury returned to the courtroom at 12.11 pm for further directions following upon submissions made by counsel. The jury retired again at 12.15 pm. The jury re-entered the courtroom at 12.38 pm to ask a question of the trial Judge. They retired again at 12.44 pm. They returned majority verdicts of guilty in relation to all three accused at 4.17 pm.
In so far as it is relevant s 57 of the Juries Act 1927 (SA) provides as follows:
57—Majority and alternative verdicts
(1) Subject to subsection (2), where a jury, having retired to consider its verdict, has remained in deliberation for at least 4 hours and the jurors have not then reached a unanimous verdict—
(a)if a sufficient number agrees to enable the jury to return a majority verdict—a majority verdict will be returned; but
(b)otherwise—the jury may be discharged from giving a verdict.
…
(4) In this section—
majority verdict means—
(a)where the jury, at the time of returning its verdict, consists of 12 jurors—a verdict in which 10 or 11 jurors concur;
(b)where the jury, at the time of returning its verdict, consists of 11 jurors—a verdict in which 10 jurors concur;
(c)where the jury, at the time of returning its verdict, consists of 10 jurors—a verdict in which 9 jurors concur,
and by majority has a corresponding meaning.
Section 59 of the Juries Act 1927 (SA) provides:
59—Fresh proceedings may be taken
(1) If a jury is discharged from giving a verdict, fresh proceedings may be taken as if there had been no trial before the jury so discharged.
(2) Subject to subsection (3), a jury will, for the purposes of section 57, be taken to remain in deliberation for the total duration of any period between the time at which the jury retires to consider its verdict and the time at which the jury returns to the court room for the purpose of delivering its verdict.
(3) Where there has been a prolonged interruption of the deliberation of a jury, the presiding judge may, by order, determine that a period fixed in the order will not be taken into account as a period for which the jury has remained in deliberation, and any such order has effect according to its terms.
The trial Judge did not make an order pursuant to s 59(3). It follows that the jury had been deliberating for four hours and 40 minutes at the time they returned their verdicts.
According to the argument for the applicant, the Court cannot accept a majority verdict unless the jury is unable to reach a unanimous verdict in the sense that no further deliberations will assist in reaching such a verdict and four hours have elapsed since the jury retired. It was submitted that it is essential that a jury be instructed that it is their duty to endeavour to reach a unanimous verdict and that it is only where a unanimous verdict cannot be reached that their power to return a majority verdict arises.
Section 57(1) of the Juries Act 1927 (SA) stipulates two preconditions before a majority verdict can be returned: the jury must have been in deliberation for at least four hours and the jurors have not then reached a unanimous verdict. Once these preconditions have been met there is nothing in the legislation which would require the trial Judge to enquire of the jury whether further deliberations could result in a unanimous verdict.

It can be accepted that unanimous verdicts are desirable and a document entitled “NOTES FOR GUIDANCE OF JURORS ATTENDING CRIMINAL SESSIONS” which is provided to jurors in the jury room states in part:
Juries should attempt to reach a unanimous verdict, that is, a verdict of all jurors. But after four (4) hours deliberation, a majority verdict of either guilty or not guilty may be accepted, unless the verdict is guilty of murder or the charge is one against Commonwealth law.
The question whether the trial Judge should refer to majority verdicts in the course of the summing up proper has led to differing opinions in the Full Court.
In R v Harrison[40] Cox J said:
One may doubt the wisdom of making a statement like that to the jury immediately before their retirement. Their thoughts should be at that stage, and continue to be, on the desirability of reaching a unanimous verdict, whatever that verdict might be, and, in my view, it is an undesirable practice, which we are told is still used by some judges, to draw explicit attention in the summing-up to the power of the jury to return a majority verdict.
One must be realistic and appreciate that jurors will probably know before they come to court, or will certainly learn soon after their jury service begins, that there is provision in this State for majority verdicts — indeed, the printed instructions in the jury room will tell them as much — but it is undesirable, in my view, that their attention should be expressly directed to that by the judge in his jury charge when the only purpose of doing so can be to sow the seeds of that as a possible outcome of the trial when, at that stage, it is completely unnecessary to mention majority verdicts at all.
[40] (1997) 68 SASR 304 at 306.
In R v K[41] Doyle CJ said:
The main complaint was that the jury should not have been told, during the course of the summing-up, of their power to return a majority verdict after they had been deliberating for at least four hours. Presumably the intent of the submission was that the jury should be told nothing of this until after the four hours had expired, and until after the jury had indicated that they were having difficulty reaching a unanimous verdict.
It was submitted that knowledge of their power to return a majority verdict would undermine the requirement for a unanimous verdict until after the jury had been deliberating for at least four hours, and might leave the jury thinking that it was adequate to focus on reaching a majority verdict and then waiting for the four hours to elapse. In that context, the practice of leaving written instructions in the jury room relating to majority verdicts was criticised as inappropriate. That practice was referred to without any criticism in Rusovan v The Queen, and the terms of the memorandum provided to the jury are to be found in Rusovan (at 94).
I reject that submission. In my opinion it is impractical to conceal from the jury knowledge of what the law provides in this respect. It is quite likely that the jury in a given case will include people who have been called for jury service on a previous occasion, or who will know from other sources that the law provides for a majority verdict. As the month for which a jury is called for service wears on, it becomes increasingly likely that the jury will include a juror who has served on a jury which has already returned a majority verdict. Failure to say anything about the power to return a majority verdict in the course of a summing-up may lead to confusion in the jury room, as a result of jurors aware of the power raising the matter in the course of the jury deliberations.
Of course, I accept what the High Court said in Cheatley v The Queen (1993) 177 CLR 541 at 552-553 about the significant difference between a deliberative process in which a verdict can be returned only if agreement is reached by all jurors, and a process in which a majority verdict can be returned. But in this State, Parliament has given the jury the power to return a majority verdict after they have been deliberating for at least four hours, and in my opinion knowledge of that power cannot conveniently and should not be withheld from them.
On the other hand, I agree wholeheartedly with the thrust of what was said by the Court of Appeal of Victoria in R v Muto [1996] 1 VR 336. There, the effect of what the court said was that in the context of explaining the unanimous verdict that is required, the trial judge should refer to the power to return a majority verdict, but that the emphasis in the summing-up at the outset should be on the returning of a unanimous verdict. There are various ways in which this can be done. It is a matter of ensuring that the jury's attention is focused upon the delivery of a unanimous verdict, while at the same time informing them that a power to return a majority verdict does arise once they have deliberated for at least four hours.
In Rusovan v The Queen no member of the court made an adverse comment upon the practice of informing the jury, either in the summing-up or by way of the memorandum in the jury room, of their power to return a majority verdict. In R v Harrison (1997) 68 SASR 304 this point was touched upon. In an ex tempore judgment, which makes no reference to Rusovan, Cox J described as undesirable the practice of drawing explicit attention in the summing-up to the power of the jury to return a majority verdict. Olsson J expressly reserved his position on the question, and Williams J agreed with the reasons given by Cox J.
As I have already indicated, I favour the view implicitly indorsed in Rusovan, but it is not necessary to decide the point in this case and I refrain from doing so. It suffices to say that in the present case, in my opinion, there was no undesirable emphasis upon the ability of the jury to return a majority verdict.
[41] (1997) 68 SASR 405 at 413-414.
We were referred to the practice in the New South Wales and Victorian jurisdictions but the corresponding legislation differs in significant respects. Under s 46 of the Juries Act 2000 (Vic) a court must refuse to take a majority verdict if it considers that the jury have not had a period of time for deliberation that the court thinks reasonable, having regard to the nature and complexity of the trial.
Section 55F(2) of the Jury Act 1977 (NSW) provides as follows:
(2)A majority verdict may be returned by a jury in criminal proceedings if:
(a) a unanimous verdict has not been reached after the jurors have deliberated for a period of time (being not less than 8 hours) that the court considers reasonable having regard to the nature and complexity of the criminal proceedings, and
(b) the court is satisfied, after examination on oath of one or more of the jurors, that it is unlikely that the jurors will reach a unanimous verdict after further deliberation.
The practice and procedure which has been developed in these jurisdictions is dictated by these legislative provisions and is not relevant to this jurisdiction.
In my view, the manner in which a jury is to be directed on this issue should be left to the discretion of the trial Judge. There is nothing to prevent a Judge referring to majority verdicts in the summing up proper, although it would be wise to include in any such remarks the desirability of unanimity. On the other hand, it could not be said that a Judge would err by not referring to the power to enter a majority verdict in the course of the summing up. It may be that the occasion for raising the issue in some trials will occur in the course of jury deliberations which have extended well beyond the four hour period. In those circumstances it is always advisable for the Judge to invite submissions from counsel before interrupting the jury's deliberations.
In the present case, I am of the view that the trial Judge proceeded in conformity with s 57 of the Juries Act 1977 (SA) and the majority verdicts were properly taken.
Conclusion
For the reasons which I have stated I am of the view that the applicant succeeds on grounds 1, 5 and 7.
I would grant leave to appeal on all grounds insofar as it is necessary, allow the appeal, set aside the conviction and direct a new trial on the information