R v Johann Saafi [2024] NSWDC 197

District Court New South Wales

Medium Neutral Citation: R v Johann Saafi [2024] NSWDC 197 Hearing dates: 29 May 2024 Date of orders: 29 May 2024 Decision date: 29 May 2024 Jurisdiction: Criminal Before: Grant DCJ Decision: The Court has no jurisdiction to entertain the application for the withdrawal of the guilty plea to Count 2 Catchwords: CRIMINAL PROCEDURE – application for traversal of guilty plea – plea entered in presence of jury – whether entering plea in presence of jury amounts to a conviction or finding of guilt – jurisdiction – no jurisdiction to allow withdrawal of guilty plea Legislation Cited: Crimes Act 1900 (NSW) Criminal Procedure Act 1986 (NSW) Cases Cited: Griffiths v The Queen (1977) 237 CLR 293 Maxwell v The Queen (1995) 184 CLR 501 R v Hura [2001] NSWCCA 61 Regina v Timothy Ian BOAG (1994) 73 A Crim R 35 Category: Procedural rulings Parties: Johann Saafi (Applicant) Rex (Respondent) Representation: Counsel:

Mr E Ozen SC (Applicant) Mr M Hay (Respondent)

Solicitors:

Mr O Elfawal (Applicant) Ms B Sommerton (Respondent) File Number(s): 2021/00157628

JUDGMENT

Introduction 1. The applicant, Mr Saafi, was represented by counsel when he stood trial before me, along with four co-accused from 24 April 2024 until the jury returned their verdicts at about 12.20pm on 28 May 2024. 2. The accused, including Mr Saafi, were arraigned in the absence of a jury panel on 24 April 2024. Mr Saafi pleaded not guilty to four counts on the indictment. 3. On 26 April 2024, in the presence of the jury panel Mr Saafi pleaded not guilty to Count 1 on the indictment, that he, 1. on 1 June 2021, at Bringelly in the State of New South Wales, did break and enter the dwelling house of GM at [redacted], and then in the said dwelling house did commit a serious indictable offence, namely, assault occasioning actual bodily harm on GM in circumstances of special aggravation, namely, that at the time the said accused was armed with an offensive weapon, namely, a pistol. 1. He pleaded guilty to the following three counts, that he, 1. on 1 June 2021, at Revesby in the State of New South Wales, did, while in the company of other persons, detain DM without his consent, with intent to hold him to ransom and at the time of detaining, actual bodily harm was occasioned to DM, 2. on 1 June 2021, at Revesby in the State of New South Wales, did, with intent to mislead a judicial proceeding, destroy evidence by means of fire, and, 3. on 1 June 2021, at Revesby in the State of New South Wales, did while in the company of other persons, intentionally damage the premises at 23/65 Marigold St, the property of LC, by means of fire. 1. Counts 1, 3 and 4 are not the subject of this application. 2. The occasioning of actual bodily harm was a circumstance of aggravation alleged to have occurred at Revesby. Mr Saafi, by his guilty plea formally and publicly admitted his guilt in respect of the elements of the offence and the circumstances of aggravation. 3. The complainant in respect of Count 2, DM, did not give evidence of an assault occurring at Revesby. The evidence pointed to him having been assaulted at Bringelly when he was taken from his father's house. This is consistent with the DNA evidence found in one of the vehicles that transported DM from Bringelly to Revesby. 4. Counsel for Mr Saafi was the second counsel to address the jury. Thereafter, Mr Cassels, Mr Hughes and Mr Pace addressed the jury. They submitted that there was no evidence of an assault or injury at Revesby. 5. The Crown quite appropriately conceded that directed verdicts of not guilty be entered in relation to Count 2 (s 86(3) and 86(2) of the Crimes Act 1900 (NSW)) leaving the jury to consider the basic offence (s 86(1) Crimes Act) for the co-accused Messrs Fielo, GF, Gillett and Schaaf. I directed the jury to do so on 23 May 2024 and the appropriate verdicts were entered. 6. On 28 May 2024, the jury returned verdicts of not guilty to Count 1 in relation to all the accused, and guilty to the statutory alternative (basic offence) to Count 2, in relation to Messrs Fielo, GF, Gillett and Schaaf. 7. Mr Saafi now brings an application to traverse his plea. There is a hurdle to such an application. 8. s 157 of the Criminal Procedure Act 1986 (NSW) provides: 157 Change to guilty plea during trial (1) If an accused person pleads "guilty" to an offence at any time after having been given into the charge of a jury, and the court accepts the plea, the court is to discharge the jury from giving a verdict in the matter and to find the accused person guilty of the offence. (2) The finding has effect as if it were the verdict of the jury, and the accused person is liable to punishment accordingly.