Director of Public Prosecutions (NSW) v Safetli [2015] NSWLC 13

Local Court New South Wales

Medium Neutral Citation: Director of Public Prosecutions (NSW) v Safetli [2015] NSWLC 13 Decision date: 27 May 2015 Jurisdiction: Criminal Before: Favretto LCM Decision: A magistrate has no power in committal proceedings to anticipate a stay of proceedings by the trial judge and consequently discharge the accused on the grounds of insufficient evidence. Legislation Cited: Criminal Procedure Act 1986 (NSW), ss 64, 91 Cases Cited: Attorney-General for New South Wales v Stuart (1994) 34 NSWLR 667 Grassby v The Queen [1989] HCA 45; 168 CLR 1 Jago v District Court of NSW & Ors (1989) 87 ALR 577 Lacey v Attorney-General (QLD) [2011] HCA 10; 242 CLR 573 R v Mohi [2000] SASC 384; 78 SASR 55 Category: Procedural and other rulings Parties: Director of Public Prosecutions (NSW) (Prosecution) B Safetli (Defendant) Representation: Director of Public Prosecutions (NSW) (Prosecution) Nyman Gibson Miralis (Solicitor for the Defendant) File Number(s): 2014/63645 Publication restriction: Nil

Judgment 1. These are committal proceedings where the accused is charged with the offence of accessory after the fact to murder (between 3 September 2009 and 13 October 2009, being the murder of Michael McGurk on 3 September 2009) and the offence of conceal serious indictable offence (between 27 July and 8 August 2010 being the intimidation of Kimberley McGurk). 2. The Director of Public Prosecutions (NSW) ("DPP") relies upon a tendered brief of evidence and the oral evidence of two witnesses whose statements were also tendered. Pursuant to consent orders under s 91 of the Criminal Procedure Act 1986 (NSW) ("the Act"), Senad Kaminic and Fortunato ("Lucky") Gatellari have both given evidence. 3. At the close of the DPP's case the accused submits that he should be discharged, not because there is insufficient evidence in this court, but because there is likely to be a stay of proceedings by the trial judge and, so it is argued, there would in fact be insufficient evidence before a jury. Consequently, if this court is satisfied that a stay of proceedings is likely, then it will not be satisfied under s 64 of the Act that, "...there is a reasonable prospect that a reasonable jury, properly instructed, would convict the accused person of an indictable offence". The basis of the accused's application for a stay (by a trial judge) are the following: 1. an abuse of process by the DPP seeking to rely upon an induced statement made by the accused which forms part of the brief of evidence served upon him by the DPP for the committal proceedings; 2. initial promises made to him by officers of the NSW Crime Commission that he would not be charged, that he would be a witness and continued contact with him as a witness; and 3. most importantly, the DPP adopting him as a witness and serving his statement in the brief of evidence against the co-accused: R v Mohi [2000] SASC 384; 78 SASR 55. 1. The proceedings were adjourned for written submissions on the question as to whether any such power was reposed in this court in the committal proceedings before consideration of the evidential basis for a stay application.