Safarjalani v The Queen - [2020] NSWCCA 337

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Safarjalani v R [2020] NSWCCA 337
Hearing dates: 10 November 2020
Decision date: 18 December 2020
Before: McCallum JA at [1];
Bellew J at [104];
Wright J at [105]
Decision:
1.   Grant leave to appeal.
2.   Allow the appeal.
3.   Quash the conviction and sentence and substitute a verdict of acquittal.

Catchwords:
CRIME — appeal against conviction — murder by shooting — evidence that one of two men present at the scene shot the deceased — where Crown case put in the alternative that the applicant was either the shooter or in a joint criminal enterprise with the shooter — evidence in Crown case tending to exclude the applicant as the shooter — whether verdict unreasonable

Legislation Cited:
Criminal Appeal Act 1912 (NSW), s 6(1)
Criminal Procedure Act 1986 (NSW), s 159

Cases Cited:
Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30
M v The Queen (1994) 181 CLR 487; [1994] HCA 63
R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35
R v Qaumi & Ors (AVL) [2015] NSWSC 1711
R v Safarjalani (No 2) [2019] NSWSC 105

Category: Principal judgment
Parties: Gazi Safarjalani (Applicant)
Crown (Respondent)
Representation:
Counsel:
T F Woods with E Bartley (Applicant)
E Balodis (Crown)
Solicitors:
Longton Legal (Applicant)
Solicitor for Public Prosecutions (Crown)

File Number(s): 2017/0057181
Publication restriction: None
Decision under appeal

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Criminal

Citation:

[2019] NSWSC 105

Date of Decision:

15 February 2019

Before:

Walton J

File Number(s):

2017/00057181

Judgment

McCALLUM JA: Gazi Safarjalani (the applicant) was found guilty of murder after a trial before Walton J with a jury. He seeks leave to appeal against the conviction. The principal ground of appeal is the ground stated in s 6(1) of the Criminal Appeal Act 1912 (NSW) that the verdict was unreasonable, or cannot be supported, having regard to the evidence.
The deceased was the applicant’s friend and sometime business partner, Bill Panagakos. Mr Panagakos was shot in the head a number of times at short range in a quiet back street in Petersham, a suburb in the inner west of Sydney. There was evidence that two other men were present at the time of the shooting, only one of whom fired a gun. At the trial, the applicant did not dispute that he was one of those two men. The Crown argued alternative paths to guilt, contending first that the applicant was the shooter and alternatively that, if not the shooter, he was nonetheless criminally responsible for the murder on the basis of a joint criminal enterprise with the shooter. The other participant in the alleged joint criminal enterprise has never been identified.
On the strength of the evidence as it unfolded at the trial, the Crown did not prove beyond reasonable doubt that the applicant was the shooter. The murder was committed at night in a poorly-lit street. An eyewitness, Mr…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Safarjalani v The Queen and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2020] NSWCCA 337
Decision Date: 18 December 2020

CaseChat Overview and Summary

The case of Safarjalani v The Queen involved the appellant, Safarjalani, who was convicted of murder by shooting. The deceased was shot at a location where two men were present, and the prosecution argued that either the appellant was the shooter or that he was part of a joint criminal enterprise with the shooter. The central issue for the court was whether the jury's verdict was unreasonable given the evidence presented by the prosecution, which tended to exclude the appellant as the shooter. The court had to determine if the evidence was sufficient to support the conviction of the appellant as either the shooter or a participant in the joint criminal enterprise.

The court examined the evidence provided by the prosecution, which suggested that the appellant was not the shooter, but rather was involved in the crime as part of a joint criminal enterprise. This evidence included witness statements, forensic analysis, and other circumstantial evidence that pointed to the involvement of the appellant in the crime. The court considered whether the jury could reasonably have concluded that the appellant was part of the joint criminal enterprise based on the evidence, despite it tending to exclude him as the actual shooter. The court needed to assess whether the jury's conclusion was open to them based on the evidence presented.

The court held that the evidence in the Crown case, which tended to exclude the appellant as the shooter, did not make the verdict unreasonable. The court found that the jury could have reasonably concluded that the appellant was part of a joint criminal enterprise based on the totality of the evidence. The court noted that the evidence did not exclude the possibility of the appellant being involved in the crime in a role other than as the shooter. The jury's conclusion, that the appellant was either the shooter or part of a joint criminal enterprise, was supported by the evidence and thus the verdict was not unreasonable.

The final orders of the court were to dismiss the appeal against the conviction. The court confirmed the conviction and the sentence imposed on the appellant for the crime of murder. The court found that the evidence was sufficient to support the jury's verdict, and that the appellant's involvement in the crime, whether as the shooter or in a joint criminal enterprise, was adequately supported by the evidence presented. The appeal was dismissed, and the conviction and sentence remained in place.

Orders