R v Nasiri

[2015] NSWSC 1649

Supreme Court

New South Wales

Medium Neutral Citation:	R v Nasiri [2015] NSWSC 1649
Hearing dates:	5 November 2015
Date of orders:	09 November 2015
Decision date:	09 November 2015
Jurisdiction:	Common Law
Before:	Hamill J
Decision:	(1) The plea in bar raised by the accused Mohammed Nasiri in respect of count 36 is sustained. (2) The accused Mohammed Nasiri is discharged with respect to count 36.
Catchwords:	CRIMINAL LAW – autrefois convict – plea in bar – participate in a criminal group – where accused previously sentenced for same offence – criminal group the same in each charge –Brothers For Life – comparison of elements – whether identification of different particulars sufficient to defeat plea in bar – plea in bar sustained – accused discharged on count   CRIMINAL PROCEDURE – autrefois convict – correct procedure on contention of plea in bar – whether plea of not guilty should remain on foot when plea in bar asserted – correct form of verdict
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 (NSW) Crimes Act 1900 (NSW) Criminal Procedure Act 1986 (NSW)
Cases Cited:	Akbari v R; Nasiri v R [2015] NSWCCA 240 Island Maritime v Filipowski [2006] HCA 30; 226 CLR 328 Li Wan Quai v Christie [1906] HCA 42; 3 CLR 1125 Pearce v The Queen (1998) HCA 57; 194 CLR 610 R v Akbari; R v Nasiri (District Court (NSW) Zahra J, 27 June 2014, unrep) R v Dodd (1991) 56 A Crim R 451 R v Stone [2005] NSWCCA 34; 64 NSWLR 413 Richards v The Queen [1993] AC 217. Saraswati v The Queen [1991] HCA 21; 172 CLR 1 The King v Gamble [1947] VLR 491 The King v Kent-Newbold [1939] HCA 37; 62 CLR 398
Category:	Principal judgment
Parties:	Regina Mohammed Nasiri (Accused)
Representation:	Counsel: K McKay & P Hogan (Crown) P Doyle (Accused)   Solicitors: Solicitor for the NSW DPP (Crown) Doyle Legal (Accused)
File Number(s):	2014/86158
Publication restriction:	Non-publication order until completion of the trial or trials.

Judgment

1. On 27 July 2015 Mohammed Nasiri was arraigned along with seven other men and one woman on an indictment containing 36 counts. Because of the number of accused persons, I will simply refer to him by his surname. Nasiri was charged with three of the offences on the indictment. In counts 4 and 5 he was charged with offences arising out of an incident at Eagle Vale on 2 August 2013. Count four alleges that Nasiri, along with three other accused, committed an offence of break, enter and steal in circumstances of special aggravation namely being armed with a firearm. Count five alleges that “in the course of an organised criminal activity, did fire a firearm at a dwelling house with reckless disregard for the safety of another person.” I will refer to these as “the Eagle Vale offences”.

2. The other offence with which Nasiri presently stands charged is count 36 which is in the following terms:

“Between 1 July 2013 and 8 January 2014, at Sydney in the State of New South Wales, did participate in a criminal group, knowing that it was a criminal group and knowing that his participation in that group contributes to the occurrence of any criminal activity.”

3. I will refer to the charge in count 36 as “the second participation offence”. By Notice of Motion dated 20 October 2015, Nasiri seeks that proceedings on count 36 “be permanently stayed on the basis of autrefois convict”. In the alternative, he seeks the same order (a permanent stay of count 36) on “the basis of a plea in bar” or because the count “is an abuse of process”.

4. Nasiri relies on the fact that he was convicted and sentenced in the District Court on 27 June 2014 in respect of the following offence (R v Akbari; R v Nasiri (District Court (NSW) Zahra J, 27 June 2014, unrep):

“That between 13 July 2013 and 27 August 2013 at Sydney in the State of New South Wales did participate in a criminal group known as “Brothers for Life” knowing that it was a criminal group and knowing, or being reckless as to whether his participation in that group contributed to the occurrence of any criminal activity.”

5. I will refer to this as the “first participation offence”. Nasiri submits that count 36 is “substantially the same offence” for which he has already been sentenced. He relies on the decision of the High Court in the cases of Li Wan Quai v Christie [1906] HCA 42; 3 CLR 1125 and Pearce v The Queen (1998) HCA 57; 194 CLR 610 and the tests stated in those cases. He also relies on the decision of Court of Criminal Appeal in R v Dodd (1991) 56 A Crim R 451. His counsel referred me to a number of other cases relevant to the plea in bar and autrefois convict.

6. The Crown opposes the orders sought and put into evidence the transcript of proceedings before Judge Zhara on 5 June 2014 as well as the Court of Criminal Appeal’s decision known as Akbari v R; Nasiri v R [2015] NSWCCA 240. The Crown “accepts the authorities relied on by the accused however submits the case does not fall within the type of cases considered in the authorities cited”. The Crown submits that the two offences are different because the particulars of participation in each charge are different. No authority was cited in support of this proposition.

CHRONOLOGY

7. To understand the arguments advanced on each side, it is helpful to set out a short chronology of the events leading to the present trial.

8. Between 13 July 2013 and 27 August 2013, Nasiri was involved with another man (Nasir Akbari) in an attempt to extort money from a man known as MM. I will refer to this as the “demand money offence”.

9. On 2 August 2013 it is alleged that there was a shooting incident at Eagle Vale. This incident gives rise to counts 4 and 5 on the present indictment, that is the Eagle Vale offences.

10. Nasiri was in custody from 20 September 2013. It appears that this related to a breach of parole and the Crown accepts that he was in custody from that date. The Crown also says that the second participation offence does not encompass any activity after that date even though the range of dates in the indictment extends to 8 January 2014. In respect of the “participation” relied on for count 36 the Crown Prosecutor indicated that the only acts relied on are those acts constituting the Eagle Vale offences. Other matters will be relied on to prove that the Brothers for Life are, in fact, a criminal group and to prove Nasiri’s knowledge that it is a criminal group.

11. On 27 December 2013, a witness (currently referred to as “A”) provided a recorded interview to police concerning the Eagle Vale offences. He did not nominate Nasiri as one of the participants. I was told that other witnesses (“B” and “C”) implicated Nasiri in the Eagle Vale offences.

12. On 21 March 2014, Nasiri was charged with the demand money offence and with the first participation offence.

13. On 5 June 2014, sentence proceedings were held before Judge Zahra in relation to the demand money offence and the first participation offence.

14. On 27 June 2014, Judge Zahra imposed an aggregate sentence pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW). For the purpose of s 53A(2)(b), his Honour indicated a sentence of 12 months for the first participation offence. His Honour also indicated that the sentence would be (but for the imposition of an aggregate sentence) partially accumulated on the sentence for the demand money offence.

15. On 24 October 2014, the accused was charged with the second participation offence. It was included (as sequence 3) on the original Court Attendance Notice created on 21 March 2014.

16. On 27 July 2014, the accused was arraigned. While he entered a plea of not guilty to count 36, counsel notified me that there would be a plea in bar or a plea of autrefois convict and, if necessary, an application for a permanent stay of the proceedings against Nasiri on count 36.

17. Written submissions were exchanged and filed and the matter was argued on Thursday 5 November 2015.

THE LAW OF AUTREFOIS CONVICT

18. The plea in bar “is a rule against repeated prosecution for a single offence”: Pearce v The Queen at [26] (McHugh, Hayne and Callinan JJ). While the rule has been loosely stated as being a rule against “double jeopardy” and one that can be invoked when the two offences are “substantially the same”, the focus of inquiry is whether the elements are the same: Pearce v The Queen at [20]-[21]. It protects against “two types of abuse, ‘multiple punishment’ for a single offence and ‘successive prosecution’ for the same offence”: Pearce v The Queen at [66] (Gummow J, referring to the protection in the Fifth Amendment to the US Constitution). While other remedies, such as a stay based on an abuse of process might also arise, the plea in bar is a “right … recognised by the common law as a protection of the subject against the executive and it should not be watered down”: R v Dodd at [57] (Gleeson CJ).

19. The test has been stated in various ways. In Li Wan Quai v Christie, Griffith CJ said at 1131:

“In order that a previous conviction or discharge should be a bar, the charges must be substantially the same. The true test whether such a plea is sufficient bar in any particular case is whether the evidence necessary to support the second charge would have been sufficient to procure a legal conviction upon the first: See R v Drury, 18 LJ M.C. 189, and other cases cited in Archbold's Criminal Pleading (21st ed).”

20. That test has been cited in a number of authorities: see, for example, R v Dodd at 455 (Gleeson CJ) and Island Maritime v Filipowski [2006] HCA 30; 226 CLR 328 at [49] (Gummow and Hayne JJ).

21. The plea in bar is “not confined to cases of identical charges”: Island Maritime v Filipowski at [49]. For example, it has been successfully invoked where an accused charged with supplying drugs had previously pleaded guilty to possession of the same drugs: R v Dodd; cf R v Stone [2005] NSWCCA 34; 64 NSWLR 413. Similarly “if the prosecution chooses only to charge an accused with an indecent assault where the facts would support a charge of rape or unlawful carnal knowledge” he would, if convicted of the indecent assault, have available a plea in bar if subsequently charged with the more serious offence based on the same facts: Saraswati v The Queen [1991] HCA 21; 172 CLR 1 at 13. In Saraswati, Dawson J said that in such a case, the plea is:

“not strictly a plea of autrefois convict because he would not have been convicted of the offence in the form charged, but based upon ‘the well-established rule at common law that whenever a person has been convicted and punished for an offence by a Court of competent jurisdiction, transit in rem judicatam – that is, the conviction shall be a bar to all further proceedings for the same offence, and he shall not be punished again for the same matter; otherwise there might be two different punishments for the same offence’: Reg v Miles (1890) 24 Q.B.D. 425 at 431, per Hawkins J quoting from Blackburn J in Wemyss v Hopkins (1875) L.R. 10 Q.B 378 at 381.”

22. In Pearce v The Queen, McHugh, Hayne and Callinan JJ said at [20]-[21] that the test stated by Griffith CJ in Li Wan Quai v Christie:

“[a]t first sight this might suggest that it is appropriate to consider what witnesses would be called and what each of those witnesses could say about the events which gave rise to the charges. Closer examination reveals that the enquiry suggested is different; it is an enquiry about what evidence would be sufficient to procure a legal conviction. That invites attention to what must be proved to establish commission of each of the offences. That is, it invites attention to identifying the elements of the offences, not to identifying which witnesses might be called or what they could say. It is only if attention is directed to what evidence might be given, as opposed to what evidence was necessary, that the enquiry begins to slide away from its proper focus upon identity of offence to focus upon whether the charges arise out of the same transaction or course of events.

Further, when it is said that it is enough if the offences are "substantially" the same, this should not be understood as inviting departure from an analysis of, and comparison between, the elements of the two offences under consideration.”

23. The plurality in Pearce v The Queen concluded at [28]:

“Inevitably, any test of the availability of the pleas in bar which considers the evidence to be given on the trial of the second prosecution except in aid of an enquiry about identity of elements of the offences charged would bring with it uncertainties of the kind identified by Scalia J. The stream of authorities in this country runs against adopting such a test and there is no reason to depart from the use of the test which looks to the elements of the offences concerned. Each of the offences with which the appellant was charged required proof of a fact which the other did not. It follows that no plea in bar could be upheld.”

24. In Pearce v The Queen the two offences in question were maliciously inflicting grievous bodily harm (GBH) with intent to inflict GBH and break, enter and commit a serious offence (infliction of GBH). The first charge required proof of specific intent, an element absent in the second charge. The second charge required proof of breaking and entering, an element absent in the first.

25. It is well established that for the plea in bar to apply, the accused must truly have been “in jeopardy” on the first occasion. For example, if the first charge could not have succeeded by operation of the relevant statute (Island Maritime v Filipowski) or where a plea (to possession) was entered and sentence deferred and the more serious charge (supply) was subject to an ex officio indictment (R v Stone), the plea could not succeed. See also Richards v The Queen [1993] AC 217.

26. There is no doubt in the present case that the accused was “in jeopardy” in the relevant sense. He was convicted and sentenced. The question here is whether the two participation offences, and the elements required to be established in each, are relevantly the same.

The “participation” charges

27. Nasiri submits that the first and second participation offences are substantially the same charge and that the “proofs” required for the two charges are the same. Significant reliance was placed on what the High Court said in Pearce v The Queen in rebutting the Crown’s suggestion that I should look to the evidence of the particulars of each offence to determine whether they are the same.

28. The prosecution says that the charges are not the same because the particulars relied upon in each case are different. It is submitted that Judge Zhara was only concerned with participation in the criminal group which encompassed the demand money offence whereas count 36 is, or will be, particularised as only encompassing the criminality in the Eagle Vale offences. That is to say, the participation in the criminal group upon which the Crown will rely in the present trial is comprised by the actions of Nasiri and others on 2 August 2013 at Eagle Vale. On the other hand, those matters were not before Judge Zahra and the transcript and judgment on sentence show that Nasiri was not punished for his participation in a criminal group arising from his involvement in the Eagle Vale offence. It is submitted by the Crown that these differences in particulars mean that these offences are not the same offence.

29. Section 93T(1) provides:

“93T Participation in criminal groups

(1) A person who participates in a criminal group is guilty of an offence if the person:

(a) Knows, or ought reasonably to know, that it is a criminal group, and

(b) Knows, or ought reasonably to know, that his or her participation in that group contributes to the occurrence of any criminal activity.

Maximum penalty: Imprisonment for 5 years.”

30. Section 93S defines “criminal group”. In both the first and second participation charge, the “criminal group” alleged by the Crown is an organisation known as the “Brothers For Life”.

31. In his judgment in sentencing Nasiri (and in the proceedings on sentence), Judge Zahra was concerned to identify what was alleged in relation to the first participation offence. In an attempt to articulate the gravamen of the offence and to determine the basis upon which Nasiri was to be punished, his Honour considered the terms of the Second Reading Speech made when the provision was introduced into the Crimes Act 1900 (NSW). His Honour then said:

“It would appear from the second reading speech that there is conduct represented in the offence of participate in a criminal group committed by the offenders which is not subsumed or represented in the conduct engaged in by the offenders in the commission of the offence of demand property in company with menaces.

The offence of participate in a criminal group includes actual knowledge or recklessness as to the fact that their actions, in participating in the criminal group, contribute to criminal activity of the criminal group 'Brothers For Life'.

The second reading speech notes the offence targets a range of activities and people who work with criminal organisations.

The difficulty in assessing the culpability of the offenders for their participation in the criminal group is in understanding the range of "activity" that the criminal group 'Brothers For Life' was involved in over and above the particular offending for which the offenders face sentence here.

No evidence is before me as to what "activity" the criminal group 'Brothers For Life' were engaged in. In assessing the criminal activity of the particular group, an issue arises as to how a sentencing judge informs himself or herself of the nature of the criminal group, here, as the charge reads "...a criminal group known as "Brothers for Life"". The difficulties are heightened by the reference to the particular group the offenders were participating in during the proceedings on sentence as the "Blacktown Chapter" of the 'Brothers For Life' group - a concept that is not further explained.

The sentence to be imposed on the count of participate in a criminal group must reflect the additional criminality in the offenders participating in a criminal group knowing that it was a criminal group and knowing, or being reckless as to whether their participation in that group contributed to the occurrence of any criminal activity.

I propose to partially accumulate the sentences to be imposed, mindful of the principles of totality and ensuring that the sentences imposed comprehend the total criminality.

In the absence of any further material being provided to me since the proceedings on sentence, the assessment of the additional criminality represented in the offending the subject of the count of participate in a criminal group must proceed only on the basis of the agreed statement of facts.”

Determination of the plea in bar

32. The Crown submits that the facts before the Sentencing Judge did not include reference to the Eagle Vale offences and that the “particulars” of the two offences are different. Accordingly, the offences are different and the elements of the offences are different. I am unable to accept this submission.

33. The elements of the offence created by s 93T were identified by the Crown in its written submissions as follows:

• Participate in a group.

• The group was a criminal group as defined.

• Knowing it was a criminal group.

• Knowing or being reckless as to whether his participation in that group contributes to the occurrence of any criminal activity.

34. The “additional criminality” to which Judge Zhara referred in sentencing for the first participation offence may not have encompassed the facts of the Eagle Vale offences, but it certainly encompassed the elements of the second participation offence. That is, the additional criminality was the participation in the criminal organisation and his knowledge or recklessness that his participation may “contribute to the occurrence of any criminal activity”.

35. Put in the terms of Sir Samuel Griffith, as explained by the plurality in Pearce v The Queen, the evidence necessary to prove the elements of the second participation offence would have been sufficient to secure a legal conviction upon the first participation offence.

34. In the absence of authority, the learned Crown Prosecutor argued by way of analogy. It was put that it is not uncommon that an offender might be charged with two sexual offences within the same time frame. Again, it was put that an offender might properly be charged with two assaults that occurred on the same day. In each of those examples, the form of the charge would be identical but there would be no plea in bar. The problem with those analogies is that, in each case, the two charges relate to different and distinct offences. Here, the charge is one of participation in a specified criminal group, the Brothers For Life. It is for that offence that Nasiri was sentenced by Judge Zahra.

35. Obviously it would be possible for a person to be charged with participation in two different criminal groups at the same time. In such a case, there could be no suggestion that the offender could raise a plea in bar. The offences would be different. However, the fact that the prosecution seeks to particularise differently the nature of an offender’s participation in the same criminal group during more or less the same time period, does not mean that it is alleging two different offences. In passing, I note that the “participation” that will be particularised in the present trial is the involvement in the Eagle Vale offences. They occurred on 2 August 2013. That is within the date range (13 July 2013 and 27 August 2013) particularised in the first participation offence.

36. The plea in bar is established.

FORM OF ORDER

39. The Notice of Motion seeks an order for a permanent stay of the indictment. In R v Dodd, Gleeson CJ emphasised the difference between the raising of a plea in bar and a motion to quash an indictment or an application for a permanent stay of proceedings. His Honour said that the correct procedure on the raising of a plea in bar was set out in The King v Gamble [1947] VLR 491.Gamble was decided at a time when “the truth of any such plea must be tried by a jury” (at 493). Gavan-Duffy J indicated that the plea in bar should be determined first and if resolved unfavourably to the accused “go on with the general evidence” (at 493). Where there were co-accused, the plea in bar should be determined first and by a separate jury (at 494). The verdict entered in that case – essentially on the direction of the trial judge – was that the plea was “not sustained”. The legal reasons provided by the trial judge were held to be erroneous but the decision was not amenable to prohibition or certiorari and the decree nisi was discharged. Gavan-Duffy J did not criticise the form of the verdict.

40. R v Dodd was decided in 1991. In 1999, the Criminal Procedure Act 1986 (NSW) was amended so that the issue of autrefois convict “is to be determined by the court without the presence of the jury”: now see s 156(2). However, in R v Stone (decided in 2005) Hunt AJA said at [25] that “the appropriate course when raising either autrefois issue is to enter a plea of autrefois acquit or autrefois convict (which is dealt with as a matter of right) rather than to apply for a stay of the proceedings (which is discretionary)”. His Honour referred to the observations of Gleeson CJ in R v Dodd.

41. It may be that the correct procedure in the present case would have been for Nasiri to raise his plea in bar on arraignment rather than to plead not guilty and to proceed by way of Notice of Motion. However, no point was taken to suggest that I should not deal with the plea on its merits. In R v Stone, Hunt AJA said at [18]-[20] that the plea in bar could not be entered “if the plea of not guilty remained standing on the record”. His Honour referred to the observations in The King v Kent-Newbold [1939] HCA 37; 62 CLR 398 where a similar situation had developed. His Honour said at [20]:

“The double pleading point was not taken at the trial; if it had been taken, the matter could easily have been resolved. The same situation arose in The King v Kent-Newbold. In that case, Latham CJ expressed the view (at 406-407, 409-410) that, if the point had been taken at the trial, an application to withdraw the plea of not guilty to enable the plea in bar to be considered on its merits would have been successful provided that the plea was a good one. Such a course would ordinarily be followed by any judge where the point is taken at the trial.”

42. To ensure compliance with what Hunt AJA referred to as “a well-established rule of criminal pleading”, on 9 November 2015 I granted leave to the accused to withdraw his plea of not guilty and arranged for him to be re-arraigned. The learned Crown Prosecutor very fairly took no objection to this course. Nasiri then entered a plea of “autrefois convict” which I took to encompass the more general plea in bar.

43. The common law distinction between an application for a permanent stay and the raising of a plea in bar (or a plea of autrefois convict) was not affected by the abolition of trial by jury on the issue. Accordingly, it is not appropriate to order a permanent stay of the proceedings based on the accused raising the plea in bar or the plea of autrefois convict. Based on the form of order in R v Gamble, as approved by Gleeson CJ in R v Dodd, it seems that the appropriate order is that the plea in bar is “sustained” whereupon the accused will be discharged in respect of count 36. In R v Stone Hunt AJA referred to the plea in bar being upheld.

ABUSE OF PROCESS?

44. The accused also seeks a permanent stay based on an abuse of process. The facts behind that application are fundamentally the same as those that ground the plea in bar. That is, the accused complains that it is an abuse of process to subject him to successive prosecutions for what is essentially the same offence.

45. However, the abuse of process case also raises different considerations. These include the fact that the prosecution was in possession of the information relating to the Eagle Vale offences since December 2013 and elected not to include them in the facts relating to the first participation offence. There is also an issue arising from the Crown’s intention to lead tendency evidence to establish (amongst other things) Nasiri’s “participation in the criminal activities of a criminal group”. This will include (if permitted) the facts of the demand money offence and the fact that the accused pleaded guilty to the first participation offence.

46. It is unnecessary to come to any conclusions as to whether these and other matters raised by counsel for the accused constitute an abuse of process or to determine whether there is any remedy other than the granting of a permanent stay of the proceedings on count 36. The plea in bar having been resolved favourably to the accused, the question of a permanent stay and the discretionary considerations relating to such a remedy do not arise. As Gleeson CJ said in R v Dodd at 457:

“There will be cases where the facts do not fall squarely within the principles that give rise to a plea in bar, and the accused must rely on wider discretionary considerations relating to oppression and abuse of process: cf Humphrys [1977] AC 1. However, this case is not materially different from other cases in which it has been held that the prosecution is barred, and I consider that the matter should be dealt with as one of right rather than as depending upon an exercise of discretion. The right is one recognised by the common law as a protection of the subject against the executive and it should not be watered down.”

ORDERS

47. I make the following orders:

1. The plea in bar raised by the accused Mohammed Nasiri in respect of count 36 is sustained.

2. The accused Mohammed Nasiri is discharged with respect to count 36.

**********

Decision last updated: 23 November 2016