Safi v R

1. [1]

   SIMPSON AJA: On 19 May 2014 the appellant was arraigned in the Supreme Court on an indictment that charged him with the murder, on 25 July 2010, of Mohammed Ayman Abouhait. He entered a plea of not guilty, and a jury trial proceeded. The jury returned a verdict of guilty on 5 September 2014. The appellant was sentenced to imprisonment for 22 years and 8 months, commencing on 30 October 2012 (the date on which he was arrested and charged) with a non-parole period of 17 years, which will expire on 29 October 2029. The Crown case was that the murder was committed in the course of a joint criminal enterprise, to which the appellant and his brother, Mitchell Johnson, were parties.

2. [2]

   The appellant now appeals against the conviction. He has not sought leave to appeal against the sentence imposed. The appellant has pleaded three grounds of appeal, all of which concern the directions given by the trial judge with respect to the issue of joint criminal enterprise.

3. [3]

   The Notice of Appeal was not filed until 31 October 2017. Accordingly, the appellant seeks an extension of time in which to appeal.

The Crown case

1. [4]

   A precis of the case the Crown proposed to make at trial may conveniently be drawn from the manner in which it was opened to the jury at the commencement of the trial and then presented. It may be summarised as follows:-

2. [5]

   In July 2010 the deceased, Mr Abouhait, was unknown to the appellant. Mr Abouhait was significantly engaged in criminal activity, involving drugs, car theft and violence. The appellant, who had previously been a car dealer, had a practice of obtaining and repairing motor vehicles for the purpose of sale. On 16 June 2010 an incident occurred involving Mr Abouhait and others offering to sell a vehicle and other items to the appellant, an offer that he refused, and which he reported to police. Subsequently, Mr Abouhait held a gun to the appellant’s head and stole a gold chain from him. Mr Abouhait was arrested on 25 July 2010, after being seen attempting to break into the appellant’s house. He was released to bail on the same day, after the appellant told police that he did not wish charges to be preferred, and that he would deal with the incident in his own way. The appellant told a neighbour who had reported the break and enter that he had not pressed charges and that he would “fix him [himself]”.

3. [6]

   The appellant subsequently told his girlfriend and her twin sister that he (or they) had bashed Mr Abouhait.

4. [7]

   Mr Abouhait was not heard from or seen alive after 25 July 2010. It was the Crown case that he was killed after 4:35 pm on that day when his mobile phone was last used at 4:34 pm to contact the appellant in a voice call from a cell tower proximate to the appellant’s home.

5. [8]

   The appellant’s mobile phone had been used to contact the deceased on twelve occasions during that afternoon and was diverted to voicemail on each occasion. The last voicemail message was placed by him at 3:53 pm. Thereafter, two voice calls of less than a minute’s duration were made to the deceased’s phone at 4:04 pm and 4:16 pm respectively, followed by a voice call to the applicant’s brother at 4:21 pm. After placing the call to the deceased at 4:34 pm, the appellant contacted his brother at 4:35 pm. The appellant’s phone was not used again until he placed a call to the deceased’s phone at 9:15 pm that evening.

6. [9]

   Skeletal remains of his body were found in bushland in March 2012. Owing to the state of decomposition, no cause of death could be determined.

7. [10]

   Except for the evidence of conversations or statements attributed to the appellant, tendered by the Crown as admissions, the Crown case was circumstantial. As indicated earlier, the Crown case was that Mr Abouhait was murdered, either by the appellant or by his brother Mitchell Johnson, in the execution of a joint criminal enterprise. The Crown could not assert, with any degree of confidence, which of the two brothers it claimed had done whatever act had caused the death. Mitchell Johnson was also charged, but, for reasons that are not apparent, his trial was separated from that of the appellant.

Relevant legal principles

1. [11]

   It is convenient to begin with an exposition of the legal concepts relevant to the issues raised on the appeal.

2. [12]

   Section 18(1)(a) of the Crimes Act 1900 is in the following terms (with emphasis on those parts that are significant for the purposes of the appeal):

3. [13]

   It may here be flagged that, for present purposes, what is important is that the mental element necessary to prove murder is established by proof that the act causing death was committed with the intention of killing or causing grievous bodily harm. Subject to the next legal principle to be discussed, it is essential that the Crown prove that the person accused did the act causing death with either of those intentions.

4. [14]

   The second legal concept it is necessary to understand is that of joint criminal enterprise. The concept of joint criminal enterprise is applicable to crime generally. Notwithstanding the terms of s 18, an accused person may be held liable for murder where the act causing death is the act of another, if that act is committed in the course of a joint criminal enterprise.

5. [15]

   Under the doctrine of joint criminal enterprise, liability for crime arises where:

6. [16]

   This outline is adapted from the prototype jury directions explaining the doctrine given by Hunt CJ at CL in R v Tangye (1997) 92 A Crim R 545 at 566-557, and approved by McHugh J in Osland v The Queen (1998) 197 CLR 316; [1998] HCA 75 at [73].

7. [17]

   The salient feature of the doctrine for present purposes is that liability attaches to a person who is not the actual perpetrator of the act of criminality where that act is the object of the agreement on which the Crown relies. To render a person liable for murder under this doctrine, it is necessary that the prosecution establish that the agreement is to do an act that is intended to kill or cause grievous bodily harm to the proposed victim.

8. [18]

   By extension of the doctrine, a party to a joint criminal enterprise may be held liable for a crime committed by one participant where that crime was not the object of the agreement, but was contemplated or foreseen as a possible incident of the commission of the agreed crime: Johns (TS) v The Queen (1980) 143 CLR 108; McAuliffe v The Queen (1995) 183 CLR 108 at 114-117. This is the concept known as “extended joint criminal enterprise”.

The trial

1. [19]

   In the present case, the Crown relied explicitly on the doctrine of joint criminal enterprise. It did not invoke the concept of extended joint criminal enterprise. So much is to be seen from the manner in which the Crown prosecutor opened to the jury. He said:

2. [20]

   It is important to reiterate that what the Crown alleged was:

3. [21]

   Proof of an agreement only to assault Mr Abouhait (without proof of an intention to kill or cause grievous bodily harm) would not render the party to the agreement who did not commit the act causing death guilty of murder under the doctrine of joint criminal enterprise. That person may have become liable under the principle of extended joint criminal enterprise, but only if the Crown also proved that that person foresaw or contemplated the possibility that death or grievous bodily harm might eventuate as a consequence of the assault. The Crown did not set out to make such a case. Instead, it pinned its case firmly on the principles of joint criminal enterprise, asserting that death or grievous bodily harm was not only within the contemplation of the parties as a possibility, but was the object of the agreement.

4. [22]

   The trial commenced on 19 May 2014. On 23 May, the fifth day, and at a point where the evidence was nearing conclusion, the trial judge indicated that he proposed to give written directions to the jury, which he intended to provide to the parties by email, for their consideration and comment. It may be assumed that this was done. Those directions included the following:

5. [23]

   The appellant did not give or call evidence. He relied instead on a statement he had made to police on 18 February 2011.

6. [24]

   The Crown prosecutor then made his closing address, during the course of which he said (as recorded in the transcript):

7. [25]

   Counsel for the defence then addressed.

8. [26]

   On 27 May 2014 the trial judge began summing up. At the end of that day he asked counsel if there was any issue about the proposed written directions he had circulated, to which both replied in the negative. The trial judge continued with the summing up. Included in the oral directions he gave to the jury was the following:

9. [27]

   During the course of the summing up he handed to the jury the written directions that had been circulated and agreed.

10. [28]

    The transcript records that, near the conclusion of the summing up, the following exchange took place between the Crown prosecutor, the trial judge and defence counsel:

11. [29]

    Both counsel then asked the trial judge to withdraw the direction concerning extended joint criminal enterprise.

12. [30]

    The trial judge then recalled the jury and gave a further direction on another matter. He then said:

13. [31]

    His Honour then directed the jury to amend the written direction in para 4 by deleting the words “was not” and inserting in lieu the words “may not have been”. The written direction then read:

14. [32]

    His Honour went onto say:

The appeal

1. [33]

   By grounds 1 and 2 as specified in the Notice of Appeal, the appellant contends that the trial judge erred in law by directing the jury in terms of the principle of extended joint criminal enterprise, when the Crown case was framed in terms of joint criminal enterprise, and thus advanced a case for the consideration of the jury different to that which had been put by the Crown. By ground 3 (additionally or alternatively, he contended that the combination of written and oral directions was confusing and that the directions were thus inadequate.

Consideration

1. [34]

   The exchanges between counsel and the trial judge, extracted at length above, reveal a degree of confusion in all quarters. The opening remarks of the Crown Prosecutor correctly identified the problem in the directions, both oral and written: put simply the directions misstated the Crown case on joint criminal enterprise. It was always the Crown case, as clearly stated in the opening, that the agreement to which it alleged the appellant and his brother were parties was to assault Mr Abouhait with the intention of killing him or causing him grievous bodily harm. This was the case the Crown Prosecutor contended the Crown had established in his closing address. If the assault with that intention was carried out, by either or both of the appellant and his brother as participants to the agreement, and the assault resulted in the death of Mr Abouhait, then both would be guilty of murder. It was never the Crown case that the agreement was simply to assault Mr Abouhait: but that his death was foreseen by the appellant as a possible result such that he would be liable for the murder under the principles of extended joint criminal enterprise. But that was the import of both the oral directions and para 4 of the written directions.

2. [35]

   Unfortunately, the Crown went onto accept that para 4 “can still remain”, although perhaps modified by the substitution of the words “may not have been” for “was not”. The point of the modification is elusive. The difficulty with para 4 was not the words “was not” but that it was included at all. It is a direction specifically related to the concept of extended joint criminal enterprise, which the Crown was at some pains to point out was not its case.

3. [36]

   Defence counsel then adopted the original position of the Crown, that the direction on extended joint criminal enterprise should be withdrawn, and a direction given that the Crown case was “that the agreement was to assault with the intention of causing grievous bodily harm or to kill” – but inexplicably, went onto say that he was not asking for any amendment to the written directions.

4. [37]

   The result was that the jury retired with a written direction related to a basis of liability for the murder of Mr Abouhait upon which the Crown had never relied. It is true that his Honour told the jury to ignore what he had earlier said about “an additional offence being committed”, but this could not and did not overcome the misleading effect of para 4.

5. [38]

   Moreover, in para 1 of the written directions, and repeatedly in the oral directions (including those given after the point had been taken) the trial judge identified the object of the agreement asserted by the Crown as an assault upon Mr Abouhait, without any reference to the intention with which it claimed the assault was to be committed. The intention to kill or cause grievous bodily harm to Mr Abouhait, integral to the Crown case and elemental of the offence of murder, was diminished by the numerous references in the summing up only to an intention to assault. Defence counsel appears to have thought that was overcome by the inclusion of para 3 in the written directions, requiring proof by the Crown of an intention on the part of the actual assailant to kill or cause grievous bodily harm. What was apparently not appreciated was that the direction as framed left open the possibility that the assault was carried out by Mitchell Johnson, with the intention to kill or cause grievous bodily harm formed subsequently to and independently of any agreement with the appellant to assault Mr Abouhait. If that were the case, then the appellant would not be liable for murder (unless he foresaw the possibility of death or grievous bodily harm – but that was not the Crown case).

6. [39]

   The identification of a (mere) assault as the agreed crime imposed a lesser burden on the Crown than the proper identification of the elements of the agreed crime including the requisite intention.

7. [40]

   On appeal, counsel for the Crown struggled to defend the directions. She argued that para 3 required the jury to consider the intention of both brothers as at the time of the infliction of the act causing death. This cannot be accepted. As indicated above, para 4, particularly when read with para 2, left open the possibility that one brother formed an intention to kill or cause grievous bodily harm subsequently to the agreement to assault Mr Abouhait. The submissions went on:

8. [41]

   Again, this cannot be accepted. The point is not how the Crown case should be construed, but what directions were given. In any event, the last sentence in para 52 of the submissions is simply unsupportable. The Crown could not establish whether either or both of the brothers was or were actual perpetrators.

9. [42]

   Counsel also argued:

10. [43]

    That submission ignores the manner in which the Crown case was framed, which was, from beginning to end, that the joint intention of the brothers was either to kill or cause grievous bodily harm.

11. [44]

    The Crown concluded:

12. [45]

    In my opinion, the directions cannot be held to have been adequate. They misstated the Crown case, were confusing and were wrong. The amendment made to the written directions did not address these issues.

13. [46]

    By way of fall-back position, the Crown relied on Rule 4 of the Criminal Appeal Rules, and the proviso to s 6 of the Criminal Appeal Act 1912.

14. [47]

    By rule 4 of the Criminal Appeal Rules:

15. [48]

    In ARS v R [2011] NSWCCA 266, Bathurst CJ said:

16. [49]

    In Papakosmas v The Queen (1999) 196 CLR 297: [1999] HCA 37 McHugh J said:

17. [50]

    In Greenhalgh v R [2017] NSWCCA 94, Basten JA reviewed the various approaches discernible in the authorities relevant to the applicant of rule 4, and concluded (at [14]) that prescription as to its application is inappropriate; but said:

18. [51]

    I respectfully agree with the first and second propositions contained within this passage; I would not go so far as to adopt the third (“otherwise leave should be refused”). But, in any event, this was not a case in which it could be said that the failure of trial counsel to identify the error was a result of a tactical decision, nor that the error was such as could be passed over as unimportant in the atmosphere of the trial. Nor is it a case in which it could be said that the appellant did not lose a real chance of acquittal. The reality is that the jury retired to reach its verdict on a basis that the Crown had never advanced. The issues properly presented to them for determination by the Crown were never determined. To adopt the words of Basten JA, “a necessary element of a fair trial according to law was overlooked.”

19. [52]

    In my opinion, leave to rely on these grounds of appeal should not be refused.

The proviso

1. [53]

   By s 5 of the Criminal Appeal Act a person convicted on indictment may appeal to this Court against conviction on any ground which involves a question of law alone, and, with the leave of the court, on any ground of appeal which involves a question of fact alone or a question of mixed law and fact, or any other ground which appears to the court to be a sufficient ground of appeal.

2. [54]

   By s 6, this Court is to allow an appeal (inter alia) if of the opinion that the verdict of the jury should be set aside on the ground of the wrong decision of any question of law, or that on any other ground whatsoever there was a miscarriage of justice. By a proviso to s 6:

3. [55]

   The task of this Court, where the application of the proviso to s 6 is raised, is to determine whether there has been a substantial miscarriage of justice: Kalbasi v The State of Western Australia [2018] HCA 7 at [16], citing Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81 at [44]. In that paragraph, the High Court said:

4. [56]

   The nature of the appellate task was examined in Weiss, and again in Kalbasi. The appellate court must, when the proviso is raised, make its own independent assessment of the evidence, in the same way it does when considering a ground of appeal that raises the reasonableness (or unreasonableness) of a jury verdict of guilty, and, in doing so, make due allowance for the natural limitations that exist in the case of an appellate court proceeding wholly or substantially on the record (Weiss at [41]).

5. [57]

   In [41] of Weiss the court added:

6. [58]

   Three matters are to be borne in mind:

7. [59]

   In Weiss, the High Court recognised that there may be cases where it would be proper to allow the appeal and order a new trial, even though the appellate court was persuaded, to the requisite degree, of the appellant’s guilt. It gave as an example of such a case one where there had been a significant denial of procedural fairness (at [45]).

8. [60]

   In Kalbasi, the High Court further recognised that some errors will prevent the appellate court from being able to assess whether guilt was proved to the criminal standard. It gave as an example cases in which there has been a wrong direction on an element of liability in issue ([15]).

9. [61]

   In those cases, it went on to say:

10. [62]

    In my opinion, this case falls into the category in which there has been a wrong direction on an element of liability in issue. The appellant has never had a jury determination of the agreement which he was alleged to have made with his brother. That is because the first issue specified in the written directions was whether the agreement was to commit an assault upon Mr Abouhait, as distinct from whether they had agreed to assault him with the intention of killing or causing grievous bodily harm – a more onerous burden on the Crown.

11. [63]

    Moreover, the jury was directed in such terms as to leave open the possibility that it was Mitchell Johnson who, in a departure from the agreement to assault, formed the intention of killing or causing grievous bodily harm. Either of these circumstances is, in my opinion, of itself, sufficient to reject the Crown’s reliance on the proviso. In combination, they are irresistible.

12. [64]

    In compliance with the requirements of Weiss and Kalbasi, however, it is necessary to undertake an examination of the whole of the evidence in the trial.

13. [65]

    The circumstantial case that the appellant was involved in the murder of Mr Abouhait was strong. The Crown pointed to the evidence, briefly referred to above, of the hostile relationship between the appellant and Mr Abouhait; there was evidence that the appellant was significantly attached to the gold chain that Mr Abouhait had stolen from him, and that the appellant threatened that, if it was not returned, Mr Abouhait would be “hurt”. There was also evidence that Mr Abouhait had attempted to break into the appellant’s house, and had been arrested, but that the appellant told police that he did not wish to make a statement, and that he would “look after it myself”. There was evidence that the appellant said something similar to the neighbour who had alerted police to the attempted break in. There was evidence of statements made by the appellant to Gina Schembri and Angela Schembri that could reasonably be construed as admissions.

14. [66]

    There was evidence of an intense degree of telephone contact between the appellant and Mr Abouhait, some of it initiated by the appellant, some by Mr Abouhait, on 25 July 2010, the day Mr Abouthait was last seen. That telephone contact ceased at about 4.30 pm. There was also evidence of repeated telephone contact between the appellant and his brother on the same day. There was evidence that blood was seen in Mitchell Johnson’s car, and on his clothing.

15. [67]

    All of this was strong circumstantial evidence of motive and opportunity. There was also evidence that the appellant had made statements that could be taken to be (and were tendered by the Crown as) admissions.

16. [68]

    The appellant’s girlfriend, Gina Schembri, gave evidence that the appellant had told her about the occurrence when the gold chain was stolen, and told her that they had “bashed” Mr Abouhait. Her evidence in this respect should be given in full. Asked what the appellant had said to her, she replied:

17. [69]

    She said that she had seen a baseball bat at the appellant’s house.

18. [70]

    Miss Schembri’s twin sister, Angela Schembri, also gave evidence. She said that, at some stage during his relationship with her sister, the appellant told her:

19. [71]

    The Crown placed heavy reliance upon the use of the plural pronoun in the evidence given by Miss Gina Schembri, reliance I consider to be overstated.

20. [72]

    However, on this evidence, there is much to be said for the proposition that the Crown had proved beyond reasonable doubt that the appellant was somehow involved in the killing of Mr Abouhait. There is far less to be said to the proposition that it had proved the involvement of Mitchell Johnson and therefore the joint criminal enterprise which was the foundation of its case against the appellant. I cannot be satisfied beyond reasonable doubt that the Crown has established the agreement with Mr Johnson on which it relies to found its case on joint criminal enterprise. A fundamental element of the Crown case is not proven to my satisfaction.

21. [73]

    These reasons were prepared prior to the publication by the High Court of its decision in Lane v The Queen [2018] HCA 28, in which that Court again considered the application of the proviso to s 6 of the Criminal Appeal Act. What was there said reinforces the view I have taken: see esp [38], [46] and [48].

22. [74]

    In my opinion an extension of time in which to appeal ought to be granted, the appeal allowed, the conviction set aside, and a new trial ordered.

23. [75]

    The orders I propose are:

24. [76]

    FULLERTON J: I agree with Simpson AJA.

25. [77]

    McCALLUM J: I agree with Simpson AJA.