David 2
ADMITTED TO THE LEGAL PROFESSION
29 Apr 1991
SIGNED VICTORIAN
BAR
ROLL
23 May 1996
ACCREDITED AS MEDIATOR
03 Feb 2005
QUALIFICATIONS
B.Com. (Hons), LLM.
Legalbrief sm
Name 1a

Subhead 1a

Jurors: speak now or forever hold your peace


NH, Jakaj, Zefi and Stakaj v the Director of Public Prosecutions [2016] HCA 33

Usually I write these blog posts for lawyers. This one is different. This blog is for lay people (lawyers are not allowed to sit on juries) because it’s about what can go terribly wrong if you become a juror and aren’t listening when your verdict is announced.

In a criminal trial after the jury reaches its verdict it’s the job of the foreperson to announce the verdict to the Court and to tell the Court whether the verdict is unanimous or by majority. All jurors must be present in the jury box when that happens and this story will show you why. If there is only one defendant and the verdict is “guilty” or “not guilty” that’s easy enough. But sometimes there are more than one defendant and more than two possible verdicts and the decision can be unanimous or by majority.  For example in a murder trial it can be open to the jury to return verdicts of guilty, not guilty or not guilty of murder but guilty of manslaughter and some verdicts might be unanimous and some may be my majority of 10 or more.

Now imagine you have four defendants. There are now forty eight possible combinations of verdicts once you allow that some can be unanimous or majority. This is what happened in South Australia in the recent case of NH, Jakaj, Zefi and Stakaj v the Director of Public Prosecutions. Four men, “NH”, Jakaj, Zefi and Stakaj were tried for the murder of one Christopher Hatzis. After the jury finished its deliberations the jury members returned to the court and resumed their seats in the jury box. The “Clerk of Arraigns” then asked the foreperson about 40 questions to ascertain the jury’s verdict for each defendant.  This is how it went:

"Trial Judge:              [Foreperson], I understand you have verdicts?

Foreperson:              Yes, I do.

Trial Judge: Are they unanimous, or at least any conviction for murder must be unanimous? You do know that, don't you?

Foreperson:              Yes, but —

Trial Judge:               But others are majority?

Foreperson:              Can you please start that again?

Trial Judge:               Take your time.  My associate will take them from you.  I take it all the verdicts are not unanimous?  Is there a majority verdict among the verdicts?

Foreperson:              Yes, that is correct.

Trial Judge:               My associate will need to know as you go through which are unanimous and which are majority.

Foreperson:              Yes.

Trial Judge:               Just listen carefully.

Foreperson:              Sure.

Associate:  As to the accused David Zefi, are you unanimously agreed upon your verdict as to the charge of murder?

Foreperson:              No.

Associate:  As to the charge of murder, and the accused David Zefi, are ten or more of you agreed upon your verdict for a majority verdict of 'not guilty'?

Foreperson:              Yes.

Trial Judge: Not guilty of murder by majority.

Foreperson:              Yes.

Associate:  As to the charge of murder, do you find the accused David Zefi 'not guilty'?

Foreperson:              Yes.

Associate:  And that is the verdict of ten or more of you?

Foreperson:              Yes.

Associate:  Members of the jury, as to the alternative charge of manslaughter, do you find the accused David Zefi 'guilty' or 'not guilty'?

Foreperson:              Guilty.

Associate:                 And is that the verdict of you all?

Foreperson:              Yes."

 

Similar questions were then asked for all the other defendants and the verdicts were entered in the Court record. Then the jury was discharged and the trial stood over for sentencing.

However, later that afternoon the foreperson reported to a Court officer that he had made a mistake in announcing that a majority of at least 10 had agreed to the verdicts. After this some of the jurors swore affidavits vindicating the forepersons statements. These affidavits formed the basis of an appeal by the DPP to the Full Court of the Supreme Court of South Australia. (Presumably the DPP wanted another chance to secure murder convictions). A bench of three Supreme Court judges allowed the appeals and ordered a re-trial for each defendant.

But the defendants appealed to the High Court. Evidently they didn’t want to take the risk of going down for murder. A bench of five High Court judges then overturned the Full Court. The High Court ruled that the when the foreperson announces the verdict in the presence of the rest of the jury and without any dissent or disagreement from them, the jury members are presumed to assent to the verdict as announced. That is the purpose of having all the jury members present in Court when the verdicts are read out. Once the verdict is entered in the Court record that is the end of the case, save for sentencing. And once that happens and the jury is discharged, the court is “functus officio” meaning that having discharged its power, it no longer has power to make any further orders. The Full Court therefore had no power to even consider what was stated to it in the affidavits.

So if you are a juror the lesson is (a) listen carefully when the foreperson announces the verdicts and (b) don’t be intimidated by the court atmosphere, if the foreperson makes an error when announcing the verdict, speak up because neither the defendants or the prosecution will ever be able to question it.