Twice acquitted, now it's triple jeopardy
March 25, 2012
Philip Leung at home in Alexandria. Phillip is to stand trial for the third time accused with the murder of his partner Mario Guzetti. Photo: Lee Besford
Five years ago, Philip Leung was found rocking from side to side at the foot of his stairs, cradling his blood-stained partner, Mario Guzzetti. A short time later, Mr Guzzetti was dead, having suffered head injuries.
Last week, Mr Leung, 51, broke down in the same stairwell after learning he would stand trial over his former lover's killing - for the third time.
At his original trial in 2009, Mr Leung was acquitted of murder after a judge directed the jury to find him not guilty.
"We had an argument" ... Philip Leung and Mario Guzzetti.
The Crown, however, used NSW's controversial double jeopardy laws, introduced in 2006, to have the verdict quashed.
Mr Leung then faced court on a manslaughter charge last April, but became the first person in Australian legal history to be acquitted twice by a judge's directed verdict. As he left court that day, he said he was ''finally free'' to move on.
He was wrong.
Last Tuesday, the unprecedented case took another twist: the NSW Court of Criminal Appeal upheld a second appeal by the Crown and ordered that Mr Leung again be tried for manslaughter.
According to uncontested facts referred to in the judgment by the appeal court, Mr Leung and his partner had been together since 2001, but a month before his death, Mr Guzzetti, 72, had told a friend he wanted to end the relationship because Mr Leung was becoming aggressive and frightening him. On the morning of April 7, Easter Eve in 2007, a neighbour heard two voices arguing at the couple's shared home in Alexandria, followed by a loud bang that resembled ''a shelf falling, and pots and lids falling to the ground''. She also later heard Mr Leung crying, ''like roaring or having a tantrum''. Almost an hour after the initial bang, Mr Leung called an ambulance, stating: ''I had a fight with my friend and my friend dead.''
When the first witnesses arrived at the scene, they found Mr Leung sitting at the bottom of the staircase. Holding Mr Guzzetti, he said to an acquaintance: ''I want my Mario … Mario, wake up.''
He told another friend: ''We had an argument … I was making carrot juice and he [Mario] kept at me.'' Mr Guzzetti had stopped breathing before paramedics arrived and in an interview at Redfern Police Station that same day, Mr Leung could not recall the vital moments before his death. ''We have breakfast, Mario argue with me. He criticise me a lot … and then my head starts spinning.''
Mr Leung was charged with murder. At his trial in May 2009, the Crown alleged the couple argued while Mr Leung was making a carrot juice, resulting in him striking his lover with a bloodstained juicer that was found on the floor beside Mr Guzzetti's body, and also by applying additional pressure to his neck. However, crucial medical and scientific evidence proved inconclusive, with both a forensic pathologist and neuropathologist concluding Mr Guzzetti's blunt force head injuries were consistent with both a physical attack using the juice extractor - and a fall.
Equally, it was advised that bruising around the neck could have been the result of either force, or amateurish attempts at resuscitation. Consequently, Justice Stephen Rothman delivered a directed not-guilty verdict, ruling the Crown had failed to properly establish how Mr Guzzetti had died. In April last year, Justice Michael Adams reached the same conclusion, directing a second jury to find Mr Leung not guilty.
But on two occasions now, the Crown has utilised double jeopardy laws that permit appeals in homicide cases settled by a judge's directed verdict. In its latest appeal, the Crown pointed to the fact that prior to the second trial, Dr Paul Botterill, who had conducted the original autopsy, inspected the premises and staircase area where the death occurred. After that visit, he concluded the likelihood of the injuries being caused by falling from the top of the stairs - which change direction and feature a quarter landing - was at most a ''theoretical possibility''.
Mr Leung's lawyers, meanwhile, argued that with two Supreme Court judges having twice dismissed the case, a third retrial would ''undermine community confidence in the criminal justice system''. It was also pointed out that Mr Leung had ''clearly suffered'' following four months of imprisonment, strict bail conditions, as well as five years of continuing stress and uncertainty that had arisen from the Crown appeals.
In his judgment on Tuesday, the NSW Chief Justice, Tom Bathurst, said based on all available evidence, and particularly the fact that both men were alone in the house, it was ''by no means certain'' that a jury verdict of guilty would be set aside as ''unreasonable''.
He overturned the acquittal, adding it was now a matter for the prosecution to determine whether to proceed for a third time against Mr Leung.
Mr Leung is on bail for manslaughter and a trial date is yet to be set. When that day arrive, he will become the first person in Australian legal history.(25/3/2012 Sydney Morning Herald)
我在2011年5月1日寫了一罪兩審 Double Jeopardy 一文，評論新州在一罪可以兩審的新法例實施之後，首宗引用有關法例的檢控。被告兩審再被判無罪(no case to answer)，以為塵埃落定，殊不知來個一罪三審。可惜判辭尚未上載，看不到討論的理據，難以置喙。恕我孤陋寡聞，在這種情況下被告第三次審訊，大概是施行普通法法律制度國家中，聞所未聞之事。
件案在上訴得直後發還重審並不罕見，性質卻與此案迥異。常見上訴後發還重審的案件，都是被告被定罪後提出的上訴，因應案情事實也好，法律觀點也好(on facts or on law)。推翻定罪之餘，基於存著足以把被告定罪的表面證據，才會考慮是否重審。至於控方對被告被判無罪而提出的上訴，都是基於原審法官在法律上犯錯，才會作出。以本案而言，兩次審訊，不同的法官，都覺得沒有結論性的證據，足以把被告定罪，故此引導陪審團判被告無罪。第二次審訊時，證據跟第一次大致相同。就算第三次審，也看不到控方可舉出任何新證據，為何還要纏擾下去？所謂沒有結論性的證據，據報章報導：crucial medical and scientific evidence proved inconclusive, with both a forensic pathologist and neuropathologist concluding Mr Guzzetti's blunt force head injuries were consistent with both a physical attack using the juice extractor - and a fall. 控方法醫自己的結論都不排除死者跌死的可能性，正符合Galbraith ( R v Galbraith [1981] 1 WLR 1039)案在考慮無需答辯時所訂下的法律原則(second limb of Galbraith - namely that the evidence adduced is such that a jury could not properly convict on it – a ruling based on the court's view of the evidence)。
雖然這是一宗嚴重罪案，新州在2006年新訂了一罪可以兩審的法例，本案也符合法例的要求可以再檢控被告。是否再次檢控被告，始終應該考慮ne bis in idem(一罪不兩審)在普通法發展的根深蒂固概念和公民權利和政治權利國際公約及歐洲人權公約(因為澳洲並無人權法)中保障一罪不作兩審的概念。如果審訊這件案的兩位法官在控方結案時不引導陪審團作無罪裁決，任由審訊發展下去，至控辯雙方結案後，由陪審團退庭商議後裁定被告無罪，屆時就不能再檢控被告，因為在該種情況下的脫罪，已不符一罪可以兩審的檢控法則。第三次起訴，我覺得只是濫用司法程序的academic exercise。控方在本案應行使檢控酌情權(prosecutorial discretion)，終止這件案，才符合公眾利益。這件案存著的合理疑點，再審一次也不能消除。
March 25, 2012
Philip Leung at home in Alexandria. Phillip is to stand trial for the third time accused with the murder of his partner Mario Guzetti. Photo: Lee Besford
Five years ago, Philip Leung was found rocking from side to side at the foot of his stairs, cradling his blood-stained partner, Mario Guzzetti. A short time later, Mr Guzzetti was dead, having suffered head injuries.
Last week, Mr Leung, 51, broke down in the same stairwell after learning he would stand trial over his former lover's killing - for the third time.
At his original trial in 2009, Mr Leung was acquitted of murder after a judge directed the jury to find him not guilty.
"We had an argument" ... Philip Leung and Mario Guzzetti.
The Crown, however, used NSW's controversial double jeopardy laws, introduced in 2006, to have the verdict quashed.
Mr Leung then faced court on a manslaughter charge last April, but became the first person in Australian legal history to be acquitted twice by a judge's directed verdict. As he left court that day, he said he was ''finally free'' to move on.
He was wrong.
Last Tuesday, the unprecedented case took another twist: the NSW Court of Criminal Appeal upheld a second appeal by the Crown and ordered that Mr Leung again be tried for manslaughter.
According to uncontested facts referred to in the judgment by the appeal court, Mr Leung and his partner had been together since 2001, but a month before his death, Mr Guzzetti, 72, had told a friend he wanted to end the relationship because Mr Leung was becoming aggressive and frightening him. On the morning of April 7, Easter Eve in 2007, a neighbour heard two voices arguing at the couple's shared home in Alexandria, followed by a loud bang that resembled ''a shelf falling, and pots and lids falling to the ground''. She also later heard Mr Leung crying, ''like roaring or having a tantrum''. Almost an hour after the initial bang, Mr Leung called an ambulance, stating: ''I had a fight with my friend and my friend dead.''
When the first witnesses arrived at the scene, they found Mr Leung sitting at the bottom of the staircase. Holding Mr Guzzetti, he said to an acquaintance: ''I want my Mario … Mario, wake up.''
He told another friend: ''We had an argument … I was making carrot juice and he [Mario] kept at me.'' Mr Guzzetti had stopped breathing before paramedics arrived and in an interview at Redfern Police Station that same day, Mr Leung could not recall the vital moments before his death. ''We have breakfast, Mario argue with me. He criticise me a lot … and then my head starts spinning.''
Mr Leung was charged with murder. At his trial in May 2009, the Crown alleged the couple argued while Mr Leung was making a carrot juice, resulting in him striking his lover with a bloodstained juicer that was found on the floor beside Mr Guzzetti's body, and also by applying additional pressure to his neck. However, crucial medical and scientific evidence proved inconclusive, with both a forensic pathologist and neuropathologist concluding Mr Guzzetti's blunt force head injuries were consistent with both a physical attack using the juice extractor - and a fall.
Equally, it was advised that bruising around the neck could have been the result of either force, or amateurish attempts at resuscitation. Consequently, Justice Stephen Rothman delivered a directed not-guilty verdict, ruling the Crown had failed to properly establish how Mr Guzzetti had died. In April last year, Justice Michael Adams reached the same conclusion, directing a second jury to find Mr Leung not guilty.
But on two occasions now, the Crown has utilised double jeopardy laws that permit appeals in homicide cases settled by a judge's directed verdict. In its latest appeal, the Crown pointed to the fact that prior to the second trial, Dr Paul Botterill, who had conducted the original autopsy, inspected the premises and staircase area where the death occurred. After that visit, he concluded the likelihood of the injuries being caused by falling from the top of the stairs - which change direction and feature a quarter landing - was at most a ''theoretical possibility''.
Mr Leung's lawyers, meanwhile, argued that with two Supreme Court judges having twice dismissed the case, a third retrial would ''undermine community confidence in the criminal justice system''. It was also pointed out that Mr Leung had ''clearly suffered'' following four months of imprisonment, strict bail conditions, as well as five years of continuing stress and uncertainty that had arisen from the Crown appeals.
In his judgment on Tuesday, the NSW Chief Justice, Tom Bathurst, said based on all available evidence, and particularly the fact that both men were alone in the house, it was ''by no means certain'' that a jury verdict of guilty would be set aside as ''unreasonable''.
He overturned the acquittal, adding it was now a matter for the prosecution to determine whether to proceed for a third time against Mr Leung.
Mr Leung is on bail for manslaughter and a trial date is yet to be set. When that day arrive, he will become the first person in Australian legal history.(25/3/2012 Sydney Morning Herald)
我在2011年5月1日寫了一罪兩審 Double Jeopardy 一文，評論新州在一罪可以兩審的新法例實施之後，首宗引用有關法例的檢控。被告兩審再被判無罪(no case to answer)，以為塵埃落定，殊不知來個一罪三審。可惜判辭尚未上載，看不到討論的理據，難以置喙。恕我孤陋寡聞，在這種情況下被告第三次審訊，大概是施行普通法法律制度國家中，聞所未聞之事。
件案在上訴得直後發還重審並不罕見，性質卻與此案迥異。常見上訴後發還重審的案件，都是被告被定罪後提出的上訴，因應案情事實也好，法律觀點也好(on facts or on law)。推翻定罪之餘，基於存著足以把被告定罪的表面證據，才會考慮是否重審。至於控方對被告被判無罪而提出的上訴，都是基於原審法官在法律上犯錯，才會作出。以本案而言，兩次審訊，不同的法官，都覺得沒有結論性的證據，足以把被告定罪，故此引導陪審團判被告無罪。第二次審訊時，證據跟第一次大致相同。就算第三次審，也看不到控方可舉出任何新證據，為何還要纏擾下去？所謂沒有結論性的證據，據報章報導：crucial medical and scientific evidence proved inconclusive, with both a forensic pathologist and neuropathologist concluding Mr Guzzetti's blunt force head injuries were consistent with both a physical attack using the juice extractor - and a fall. 控方法醫自己的結論都不排除死者跌死的可能性，正符合Galbraith ( R v Galbraith [1981] 1 WLR 1039)案在考慮無需答辯時所訂下的法律原則(second limb of Galbraith - namely that the evidence adduced is such that a jury could not properly convict on it – a ruling based on the court's view of the evidence)。
雖然這是一宗嚴重罪案，新州在2006年新訂了一罪可以兩審的法例，本案也符合法例的要求可以再檢控被告。是否再次檢控被告，始終應該考慮ne bis in idem(一罪不兩審)在普通法發展的根深蒂固概念和公民權利和政治權利國際公約及歐洲人權公約(因為澳洲並無人權法)中保障一罪不作兩審的概念。如果審訊這件案的兩位法官在控方結案時不引導陪審團作無罪裁決，任由審訊發展下去，至控辯雙方結案後，由陪審團退庭商議後裁定被告無罪，屆時就不能再檢控被告，因為在該種情況下的脫罪，已不符一罪可以兩審的檢控法則。第三次起訴，我覺得只是濫用司法程序的academic exercise。控方在本案應行使檢控酌情權(prosecutorial discretion)，終止這件案，才符合公眾利益。這件案存著的合理疑點，再審一次也不能消除。
Unfortunately for him but luckily for the Crown, the Crown finally got what they wanted so badly: http://www.theaustralian.com.au/news/nation/cleared-twice-but-guilty-after-third-trial/story-e6frg6nf-1226525889719
回覆刪除To convict him after trying him for 3 times, I cannot help but wonder what would people say about this case and how much confidence do the Australian people still have in their criminal justice system.