Citation: Safi v R [2018] NSWCCA 134
Court: Court of Criminal Appeal, NSW
Date: 29 June 2018
Judge(s): Simpson AJA (with Fullerton J and McCallum J agreeing)
Background
The appellant was convicted of murder following a jury trial in the Supreme Court in September 2014. The Crown alleged that he and his brother had entered into a joint criminal enterprise to assault the deceased, with the intention of either killing him or causing him grievous bodily harm. The deceased had previously robbed the appellant at gunpoint, and the circumstantial evidence suggested the appellant had arranged for the deceased to attend his home on the day of the killing.
The Crown's case rested substantially on phone records and statements attributed to the appellant, including a remark to his girlfriend that "they bashed" the deceased. Because the prosecution could not determine with confidence which of the two brothers had delivered the fatal blow, joint criminal enterprise was the foundation of the case against the appellant.
The appellant was sentenced to 22 years and 8 months' imprisonment with a non-parole period of 17 years. He filed his Notice of Appeal in October 2017, more than three years after conviction, and therefore required an extension of time to bring the appeal.
Legal Issues
- Whether the trial judge erred by directing the jury on extended joint criminal enterprise, a basis of liability the Crown had never relied upon
- Whether leave under Rule 4 of the Criminal Appeal Rules should be granted to argue the point on appeal, given that defence counsel did not object to the relevant written direction at trial
- Whether the proviso to s 6 of the Criminal Appeal Act 1912 applied, such that no substantial miscarriage of justice had actually occurred despite the erroneous direction
Decision
The erroneous direction. The trial judge provided both oral and written directions on joint criminal enterprise. Extended joint criminal enterprise is a doctrine under which a party to a criminal agreement can be held liable for a further crime committed by another party, even if that further crime fell outside the agreed plan, provided the accused foresaw it as a possible incident of the agreed enterprise. This doctrine was not part of the Crown's case. Although the judge withdrew the oral direction after the Crown objected, one paragraph of the written directions remained and continued to reflect the extended doctrine. That paragraph went to the jury room with the jury. The Court held the direction was erroneous because it placed a lesser burden on the Crown than the case it had actually presented.
Leave under Rule 4. Because defence counsel had not sought amendment of the offending paragraph at trial, the Crown argued the appellant required leave under Rule 4 of the Criminal Appeal Rules to raise the point on appeal. The Court of Criminal Appeal granted leave. It confirmed that where a necessary element of a fair trial according to law has been overlooked, leave under Rule 4 should generally be granted, even in the absence of a trial objection, though the position cannot be stated prescriptively for all cases.
The proviso. The Crown argued that, even if the direction was erroneous, the proviso to s 6 of the Criminal Appeal Act should apply on the basis that no substantial miscarriage of justice had actually occurred. The Court's task under the proviso requires an independent appellate assessment of the evidence, with appropriate allowance for the limitations of proceeding on the record. The Court rejected the proviso on two independent grounds: first, the erroneous direction imposed a less onerous burden on the Crown than it had accepted; and second, the jury had never made a determination on the alleged agreement between the two brothers, which was the essential foundation of the joint criminal enterprise case. Simpson AJA added a further reason, finding that the Crown had not established beyond reasonable doubt the agreement between the appellant and his brother on which the joint enterprise case depended.
Orders Made
- Time within which to file a Notice of Appeal extended to 31 October 2017
- Appeal allowed
- Conviction set aside
- New trial ordered
Key Takeaways
- A jury direction advancing a basis of criminal liability that the Crown never relied upon is erroneous, and its presence in written materials taken into the jury room can constitute a miscarriage of justice even where the corresponding oral direction was withdrawn.
- Leave under Rule 4 of the Criminal Appeal Rules should generally not be refused where the point involves an element of a fair trial according to law, notwithstanding the absence of a trial-level objection by defence counsel.
- The Court of Criminal Appeal confirmed that the proviso to s 6 of the Criminal Appeal Act 1912 requires the appellate court to make an independent assessment of the evidence, making due allowance for the limitations of an appellate record.
- Where an erroneous direction reduces the burden on the Crown compared with the case it actually ran, and where the jury has consequently never resolved a fundamental factual question on the correct legal basis, those deficiencies are each independently sufficient to defeat reliance on the proviso.
- The High Court's decision in Lane v The Queen [2018] HCA 28, published after these reasons were substantially prepared, was noted as reinforcing the Court's approach to the proviso analysis.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 18
- Criminal Appeal Act 1912 (NSW), s 5, s 6
- Criminal Appeal Rules (NSW), r 4
Cases
- 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