EVIDENCE AND ADVOCACY

Assignment Instructions

2018 Compulsory Assignment

The assignment task is to argue for or against the following opinion.

Opinion

Supreme Court by jury. Twelve jurors heard the evidence in the six-week trial. At the close of evidence,
the trial Judge instructed the jury that there were three possible verdicts: guilty of murder, guilty of
manslaughter, or not guilty at all.
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Under our Juries Act 1927, the jury must be unanimous in convicting of murder. However, after four
hours of deliberations, the jury may return other verdicts, including acquittals of murder, by majority
verdict of 10 or more.
This jury deliberated for several days – well over four hours.

1st Qtr 2nd Qtr 3rd Qtr 4th Qtr
East
West
North

The jury gives its verdicts through the Foreperson answering questions from the trial Judge’s assistant.
The Foreperson indicated that the jury had found each accused not guilty of murder but guilty of
manslaughter. The jury was thanked and dismissed.
Later that same day, the Foreperson advised a Court Officer that he made a mistake. In response to
questions asking if “10 or more of the jury were agreed on the verdict of not guilty of murder” he had
said “Yes” – but he was now not sure they had reached such agreement.
The Supreme Court ordered that statements be taken from the Foreperson and other jurors. The
statements confirmed that there had not been a 10-plus majority verdict of not guilty for any accused.
The Prosecution appealed to the Court of Criminal Appeal (CCA) to have the verdicts overturned and
re-trials ordered. The majority of the CCA agreed. They reasoned that the verdicts had not been
returned in accordance with the Juries Act and therefore the Supreme Court had power (and duty) to
order new trials so the original jury error did not subsist.
The four accused appealed the CCA judgment to our highest court: the High Court. The High Court,
unanimously, allowed the appeals and disagreed with the CCA. The HC said the jury had given their
verdict in open court and been dismissed after fulfilling their duty. The closely guarded privacy of jury
deliberations did not permit the Supreme Court to investigate jurors’ concerns after they completed
their service.
Individual liberty demands that overturning an acquittal and exposing an accused to re-trial cannot be
done other than in exceptional cases.
What is exceptional? Had a fellow juror protested to the Foreperson’s answers in court, before being
dismissed, they could have been corrected. But jurors may be forgiven for not rising to such voice
given the solemn and unnerving occasion of a jury giving verdict on murder charges.
The CCA judgment gave effect to a principle as important as liberty, namely, that full and correct voice
be given to the jury as the voice of the citizenry. Privacy of jurors is important to ensure their verdicts
are delivered dispassionately. However, if juries themselves admit error, how can we maintain
confidence in a system which does not allow jurors, who are charged with adjudging guilt, the power
to admit and correct their mistakes?
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Additional Instructions and Materials
This opinion is based on the South Australian Court of Criminal Appeal judgment in Case Stated on
Acquittal No 1 of 2015; R v Stakaj & NH [2015] SASCFC 139 and the appeal from the CCA judgment
to the High Court: NH & Ors v DPP (SA) 2016 HCA 33.
Copies of both judgments are available on MyUni together with this assignment.

Research for Assignment

This is a research assignment. You are required to consider and refer in your assignment to materials
beyond those forming the readings for the Course. This can be satisfied by primary reference to the
judgments of the CCA and HCA issued with this assignment. You may research beyond these
materials but it is not required, nor will you be penalised for not doing so.

Assignment Grading

The Assignment will be graded, holistically, according to the following rubric:

Quality 5
(HD)
Organisation and structure (ie, structure
is logical and internally consistent)
Critical analysis (ie, analysis of legal
principle beyond mere recitation)
Argument is (i) made, (ii) developed and
(iii) persuasive
Originality (ie, insightfulness of argument
and approach)
4 3
(C)
2 1
(F)
☐ ☐ ☐ ☐ ☐
☐ ☐ ☐ ☐ ☐
☐ ☐ ☐ ☐ ☐
☐ ☐ ☐ ☐ ☐
Accuracy (ie, correct statements and
interpretation of case law and principle)
☐ ☐ ☐ ☐ ☐
Clarity of style and language
☐ ☐ ☐ ☐ ☐
Adequacy of referencing
☐ ☐ ☐ ☐ ☐
This rubric is a guide to marking. The grade awarded will take account of each factor in the rubric
but a single, overall grade will be awarded (not a grade for each “quality” as above).

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