Safi v The Queen - [2018] NSWCCA 134

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 proviso
Legislation Cited: Crimes Act 1900, s 18
Criminal Appeal Act, s 5
Criminal Appeal Rules, r 4
Cases 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 81
Category: Principal judgment
Parties: Hanna Safi (Appellant)
Crown (Respondent)
Representation:
Counsel:
P Lange (Appellant)
T Smith (Crown/respondent)
Solicitors:
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…

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.

Continue reading Safi v The Queen

Details

AGLC: Safi v The Queen [2018] NSWCCA 134
Case: [2018] NSWCCA 134
Decision Date: 29 June 2018

CaseChat Overview and Summary

The appeal against conviction was heard by the NSW Court of Criminal Appeal. The appellant, Safi, had been convicted of murder. The central issue before the court was whether the trial judge's directions to the jury, which introduced the concept of an extended joint criminal enterprise, constituted an error that led to a miscarriage of justice. The appeal was based on the premise that the trial judge's directions went beyond the Crown's case, which was focused on a joint criminal enterprise. The appellant contended that the jury was erroneously guided to consider a broader theory of criminal liability than that presented by the Crown.

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