Supreme Court New South Wales Medium Neutral Citation: R v Safi [2018] NSWSC 1469 Hearing dates: 27 September 2018 Date of orders: 27 September 2018 Decision date: 27 September 2018 Jurisdiction: Common Law Before: Harrison J Decision: Bail refused Catchwords: BAIL – release application – show cause offence – murder – joint criminal enterprise – where applicant previously convicted – where conviction overturned – where new trial to be held – where significant delay – where Crown case could not be described as weak – cause not shown – bail refused Legislation Cited: Bail Act 2013 (NSW), s 16B Criminal Appeal Act 1912 (NSW), s 6 Category: Principal judgment Parties: Hanna John Safi (Applicant) Crown (Respondent) Representation: Counsel: P Lange (Applicant) Solicitors: Murphy's Lawyers (Applicant) Director of Public Prosecutions (Respondent) File Number(s): 2018/210491 Publication restriction: Nil Judgment 1. HIS HONOUR: John Safi applies for bail. He was born in 1977 and is currently 40 years of age. In the events that have occurred, he was arrested on 2 November 2012 and charged with the murder of Mohammed Abouhait on 25 July 2010. 2. Mr Safi has been in custody bail refused since the date of his arrest. However, following the return of a verdict of guilty by a jury on 5 September 2014, Mr Safi was sentenced to a term of imprisonment by the trial judge. 3. Thereafter a notice of appeal against his conviction, but not his sentence, was filed on 31 October 2017. The Court of Criminal Appeal earlier this year allowed the appeal, quashed the conviction and ordered that there be a new trial. That trial is now listed in this Court to commence on 4 March next year. 4. By the time that trial commences it follows that Mr Safi will have been in custody on remand for something slightly in excess of six years. In all of that time, as far as I am aware, he has not ever applied previously for bail. He does so now and is necessarily confronted with the requirement that he show cause why his continued detention is not justified having regard to the terms of section 16B(1)(a) of the Bail Act 2013 in that he has been charged with an offence that is punishable by life imprisonment. 5. The Crown opposes bail but, in advance of that, takes issue with whether or not Mr Safi has shown cause. I will turn to that issue. Mr Lange of counsel, who appears for Mr Safi, relies upon two matters in combination to demonstrate that his client has shown cause in accordance with the Act. The first is delay. The second is what he contends is the questionable nature of the Crown case. I take it to be accepted as the law that a combination of unacceptable delay and a weak Crown case are sufficient, if established, in an appropriate case to demonstrate that the show cause requirement has been satisfied. 6. Dealing first with the question of delay, there can be no doubt that more than six years between arrest and ultimate disposition is extraordinary and, on one view, unacceptable. In the present circumstances it cannot be said that the Crown is at fault for this delay in the sense that I have had drawn to my attention any failings by the Crown to prosecute the trial in a timely way. Even notwithstanding absence of fault, the delay is extensive on any view. 7. I note necessarily, however, that part of the time has included Mr Safi's successful appeal to the Court of Criminal Appeal and the added time thereafter for the appointment of a further hearing in accordance with the available dates for that matter in this Court. 8. It is sufficient to note that an objective observer might be concerned that the prospective delay of only six months, when combined with the past delay, amounts to a circumstance supportive of the proposition that the applicant has either established or has established a significant fact in support of the show cause requirement. Secondly, Mr Lange draws my attention to what I will attempt in neutral terms to describe as the strength of the Crown case. Without, I trust, doing injustice to the way in which the Crown put its case, the principal allegation was that Mr Safi and his brother were parties to a joint criminal enterprise to assault the deceased with the intention of either causing him grievous bodily harm or killing him. 9. At his trial the presiding judge gave certain directions to the jury. Those directions included a reference to Mr Safi's alleged liability based on extended joint criminal enterprise. As is well known under that doctrine, a party to an agreement to commit a crime may also be held liable for a crime committed by another party to that agreement, even if that crime was not in the agreement or was not contemplated or foreseen in the possible execution of the agreed crime. It is uncontroversial that extended joint criminal enterprise was not part of the Crown case. 10. I will return to it shortly but it is sufficient to observe that the Court of Criminal Appeal determined that the appeal should succeed upon the basis of what it characterised as a misdirection. It is at the heart of the current application to contend, if not in terms at least by implication, that the strength of the Crown case at trial was co-extensive with the misdirection or, put another way, had the jury been properly directed he would have been acquitted and, on Mr Safi's case, assuming at his retrial it is correctly directed, the joint criminal enterprise allegation against him falls away. The contention therefore is that the Crown case is weak. 11. Mr Lange helpfully drew my attention to certain passages in support of this contention in both the trial judge's remarks on sentence as well as those of the Court of Criminal Appeal dealing with the proviso issue that arose in the course of proceedings in that Court. For present purposes it is necessary only to refer to some of those matters to underscore Mr Lange's propositions. 12. At [40] of the trial judge's remarks on sentence, his Honour said this with respect to the question of whether or not, following the finding of guilt by the jury, he had intended to kill the deceased or intended only to inflict grievous bodily harm upon him: "[40] As to the third of those matters the Crown pointed to the evidence of Angela Schembri that the offender had told her that he bashed the deceased 'to death'. It was submitted that this was consistent with an intention on the part of the offender to kill the deceased. As I understood it, the Crown put this as the primary, if not the only, evidence which supported such a conclusion. Whilst I accept that this was said, it was a statement which was made after the event. It does not, in my view, establish beyond reasonable doubt that the offender intended to kill the deceased at the time of the attack. It is a statement of what occurred. It is not a statement that what occurred was in fact intended by the offender. In these circumstances I am not satisfied that the offender intended to kill the deceased. I am satisfied from other statements made by the offender to Gina Schembri, Angela Schembri and Mr Piccinelli that the offender intended to inflict grievous bodily harm on the deceased." 1. It will be obvious that that was said by his Honour in the course of his obligation to make factual findings that were consistent with the verdict of the jury for the limited purpose of sentencing the applicant. 2. When the matter came to the Court of Criminal Appeal, all judges were of the view that the appeal should be allowed. Part of that conclusion included a rejection of the Crown's contention that the matter should be dealt with pursuant to section 6 of the Criminal Appeal Act 1912 or, in other words, that the proviso should apply. Simpson AJA said this at [72] of the Court of Criminal Appeal judgment: "[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. The Court 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." 1. Although neither the view of the trial judge nor of the Court of Criminal Appeal is dispositive of this application, there is material in these judgments to suggest that some doubt exists in relation to the case or alternatively the strength of the case that the Crown attempted to prove at trial and which, as far as I am aware, it will continue to attempt to establish in March next year. 2. The question arises as to whether or not, with the assistance of those comments, it is possible to say that there is no case capable of going to the jury which, properly instructed, could rely upon to return a verdict of guilty. 3. Without descending into the particular detail of the offence it is, I think, correct to note that there was some background to the relationship between applicant and the deceased out of which, on the Crown case, the circumstances that led to the killing would appear to have arisen. These matters are adequately described and referred to in the decision of the Court of Criminal Appeal at [4]–[8] inclusive, among other places. Part of the Crown case involves evidence that places the applicant at the premises of the deceased at or about the time, according to telecommunication evidence relating to the deceased's telephone, at the time he was killed. 4. Doing the best I can, it seems to me that the Crown case, limited to joint criminal enterprise and without the disqualifying directions dealing with extended joint criminal enterprise, which for reasons of caution I have not referred to in detail, could support a finding of guilt if properly directed. In other words, notwithstanding the matters I have referred to, I am not satisfied that the Crown case is so weak and improbable as not to withstand scrutiny or be dealt with by way of some peremptory application either before or during the course of the trial. 5. In summary, in my opinion, having regard to the fact that there has been considerable delay to date but that there is not considerable delay between now and the trial, and having regard to the fact that, on one view, taking the Crown case properly described at its highest, it could lead to a conviction, I am not satisfied that Mr Safi has shown cause as to why his continued detention is not justified. 6. In those circumstances, I think bail should be refused. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 12 December 2019