Court of Criminal Appeal
Supreme Court
New South Wales
- Summary available
- Amendment notes
Medium Neutral Citation: Safi v R [2018] NSWCCA 134 Hearing dates: 13 April 2018 Decision date: 29 June 2018 Before: Simpson AJA at [1]
Fullerton J at [75]
McCallum J at [76]Decision: 1. The time within which to file a Notice of Appeal be extended to 31 October 2017.
2. Appeal allowed.
3. Conviction set aside.
4. There be a new trial.Catchwords: CRIMINAL PROCEDURE – appeal against conviction – where convicted of murder – directions to jury – where Crown case joint criminal enterprise – where directions introduced concept of extended joint criminal enterprise – whether the directions erroneously advanced a case for consideration of the jury that was not the Crown case
CRIMINAL PROCEDURE – appeal against conviction – Criminal Appeal Rules (NSW) r 4 – whether error giving rise to miscarriage of justice
CRIMINAL PROCEDURE – appeal against conviction – Criminal Appeal Act s6 – whether “no substantial miscarriage of justice has actually occurred” – whether jury direction precluded application of provisoLegislation Cited: Crimes Act 1900, s 18
Criminal Appeal Act, s 5
Criminal Appeal Rules, r 4Cases Cited: ARS v R [2011] NSWCCA 266
Greenhalgh v R [2017] NSWCCA 94
Johns (TS) v The Queen (1980) 143 CLR 108
Kalbasi v The State of Western Australia [2018] HCA 7
Lane v The Queen [2018] HCA 28
McAuliffe v The Queen (1995) 183 CLR 108
Osland v The Queen (1998) 197 CLR 316; [1998] HCA 75
Papakosmas v The Queen (1999) 196 CLR 297: [1999] HCA 37
R v Tangye (1997) 92 A Crim R 545
Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81Category: Principal judgment Parties: Hanna Safi (Appellant)
Crown (Respondent)Representation: Counsel:
Solicitors:
P Lange (Appellant)
T Smith (Crown/respondent)
Murphy’s Lawyers Inc (Appellant)
Solicitor for Public Prosecutions (Crown/Respondent)
File Number(s): 2012/338743 Decision under appeal
- Court or tribunal:
- Supreme Court
- Jurisdiction:
- Criminal
- Citation:
- [2014] NSWSC 1208
- Date of Decision:
- 05 September 2014
- Before:
- Bellew J
- File Number(s):
- 2012/338743
HEADNOTE
[This headnote is not to be read as part of the judgment]
On the trial of the appellant for murder, the Crown alleged that the appellant and his brother were parties to a joint criminal enterprise to assault the deceased with the intention of either causing him grievous bodily harm or killing him.
The trial judge provided the jury with both oral and written directions concerning joint criminal enterprise. The directions included reference to liability based on extended joint criminal enterprise. Under that doctrine a party to an agreement to commit a crime may also be held liable for a crime committed by another party to the agreement, even if that crime is not within the agreement, but was contemplated or foreseen as a possible incident in the execution of the agreed crime. Extended joint criminal enterprise was not part of the Crown case.
Towards the conclusion of the summing up the Crown took…
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- AGLC
- Safi v The Queen [2018] NSWCCA 134
- Case
- [2018] NSWCCA 134
- Decision Date
CaseChat Overview and Summary
The court examined whether the trial judge's directions amounted to an error that resulted in a miscarriage of justice. The court found that the directions, while perhaps not perfectly aligned with the Crown's case, did not introduce a new theory of criminal liability that was fundamentally different from what the jury had to consider. The court held that the trial judge's directions were not so erroneous as to result in a miscarriage of justice. The appeal was dismissed as the error, if any, did not prejudice the appellant to such an extent that it resulted in a miscarriage of justice.
The court further considered whether the error precluded the application of the proviso in s6 of the Criminal Appeal Act. The court found that the proviso was applicable, as the jury direction, while potentially erroneous, did not prevent the jury from considering the evidence and the Crown's case on its merits. The appeal was dismissed, and the conviction was upheld.
Orders
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Background
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Evidence
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Decision
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Ratio Decidendi
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