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Court of Criminal Appeal 18 December 2020

Safarjalani v R

[2020] NSWCCA 337

Homicide

Citation: Safarjalani v R [2020] NSWCCA 337
Court: NSW Court of Criminal Appeal
Date: 18 December 2020
Judges: McCallum JA at [1]; Bellew J at [104]; Wright J at [105]

Background

The applicant was convicted of the murder of his long-time friend and former business partner, who was shot in the head multiple times at close range in a poorly lit back street in Petersham, Sydney. Two men were present at the shooting, and the applicant did not dispute at trial that he was one of them. Only one of the two fired a gun.

The Crown ran its case on two alternative bases: either the applicant was the shooter himself, or he was criminally responsible as a participant in a joint criminal enterprise with the shooter to murder the deceased. The identity of the other man present was never established.

The Crown's case was entirely circumstantial. It relied on the applicant's post-offence conduct, including lies about his whereabouts, his failure to attend the deceased's funeral despite their close friendship, the cessation of his mobile phone use the day after the murder, and the discovery of a bullet in his parents' home some 15 months later.

  • Whether the verdict of guilty was unreasonable, or could not be supported by the evidence, under s 6(1) of the Criminal Appeal Act 1912 (NSW)
  • Whether the Crown had established beyond reasonable doubt that the applicant was the shooter
  • Whether, if the applicant was not the shooter, the evidence was sufficient to establish that he was party to a joint criminal enterprise to murder the deceased
  • Whether, as a second ground argued at the hearing, the trial miscarried because the jury was not directed to be unanimous as to which of the two alternative bases of liability it accepted

Decision

On the shooter hypothesis: The eyewitness, Mr Hardy, described one man at the scene as tall and skinny and the other as shorter and a little bit fat, and said it was the shorter man who fired the gun. The trial judge on sentence had found that the applicant's physical appearance was inconsistent with the description of the shooter, concluding it could not be established beyond reasonable doubt that the applicant was the shooter. The Court of Criminal Appeal accepted that conclusion. Without cogent evidence to the contrary, the Court was unable to be satisfied beyond reasonable doubt that the applicant pulled the trigger.

On joint criminal enterprise: The Court then turned to whether the circumstantial evidence, assessed as a whole, was sufficient to establish that the applicant had participated in a joint criminal enterprise to murder the deceased. McCallum JA concluded it was not. The post-offence conduct relied upon by the Crown, including the lies and the failure to attend the funeral, was equally consistent with the conduct of a person who feared being blamed for something he had not done, rather than someone guilty of murder. The applicant and the deceased moved in a criminal milieu, which the Crown itself acknowledged, and that context supported an alternative hypothesis that the applicant may not have known the deceased was going to be shot until it happened.

On the recorded conversations: The Court paid particular attention to conversations captured by listening devices between the applicant and his wife, and separately between the applicant and another person referred to as Eileen. McCallum JA noted that the Court was as well-placed as the jury to analyse those recordings. Having done so, her Honour found that the lies told by the applicant required careful analysis as to their precise content and likely motivation. The lies were not unequivocally indicative of guilt of murder.

Overall conclusion: The Court was satisfied that the jury, properly instructed, ought to have entertained a reasonable doubt. The verdict was therefore unreasonable and could not be supported on the evidence. In light of that conclusion, it was unnecessary to consider the second ground relating to jury unanimity.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • Conviction and sentence quashed
  • Verdict of acquittal substituted

Key Takeaways

  • A circumstantial Crown case cannot sustain a conviction where the evidence is equally consistent with a rational hypothesis of innocence, and each strand of the circumstantial case must ultimately be assessed in terms of its collective, not piecemeal, force.
  • Consciousness of guilt inferences drawn from post-offence conduct, such as lying about whereabouts, avoiding the deceased's family, and ceasing mobile phone use, are weakened where those same behaviours are explicable by a person's fear of being wrongly blamed rather than actual guilt of the charged offence.
  • The Court of Criminal Appeal confirmed that where a Crown runs alternative bases of liability, a conviction cannot stand unless the evidence is sufficient to support guilt on at least one of those bases beyond reasonable doubt.
  • Under the test in M v The Queen (1994) 181 CLR 487, the appellate task is not merely to ask whether the evidence was capable of sustaining the verdict; the question is whether a properly instructed jury ought to have had a reasonable doubt.
  • Where a trial judge makes factual findings during sentencing that the Crown does not dispute on appeal, those findings can provide a foundation from which an appellate court proceeds, even where the court cannot itself observe the physical characteristics of the applicant.

Legislation and Cases Referenced

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

Cases:
- M v The Queen (1994) 181 CLR 487; [1994] HCA 63
- Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30
- 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