Mr O Elfawal (Applicant)
Ms B Sommerton (Respondent)
File Number(s): 2021/00157628
[3]
Introduction
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.
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.
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.
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.
Counts 1, 3 and 4 are not the subject of this application.
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.
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.
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.
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.
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.
Mr Saafi now brings an application to traverse his plea. There is a hurdle to such an application.
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.
[4]
The applicant's submissions
Mr Ozen of senior counsel appears for Mr Saafi. He submits that I am not functus and I should hear an application to traverse the plea.
He calls in aid s 133(1) of the Criminal Procedure Act which provides:
133 Verdict of single Judge
(1) A Judge who tries criminal proceedings without a jury may make any finding that could have been made by a jury on the question of the guilt of the accused person. Any such finding has, for all purposes, the same effect as a verdict of a jury.
He submits that a Judge in a Judge alone trial may entertain an application for traversal and s 157 Criminal Procedure Act must be read in light of a Judge having the ultimate supervisory role, and therefore is not functus.
He relies on R v Hura [2001] NSWCCA 61 where Spigelman CJ (Simpson J and Carruthers AJ agreeing) at [30]:
In his remarks to the jury, following upon his Honour's express acceptance of the plea, his Honour said, "there is no longer any need either for a trial or for a jury". The reference to the absence of the need for a jury may be seen as referable to that part of s91(1) which refers to the discharge of the jury. However, the express reference to the fact that there was now no longer a need for a trial of any character, is a clear indication that the trial judge had made a finding of guilt. To similar effect is his Honour's reference to the fact of the admission of guilt as "all that the law requires in order to establish his guilt". These two references, together with the formal commencement of proceedings on sentence, constitute "an unequivocal indication" that the accused had been found guilty - to adopt the terminology of Aiken J in Griffiths supra at 336, applied by Gaudron and Gummow JJ in Maxwell at 531-532.
He submits that I have not formally made a finding of guilt or commenced proceedings on sentence therefore I am not functus.
[5]
The Crown's submissions
The Crown submitted that Mr Saafi entered a plea of guilty in front of the panel and then I, as the trial Judge, commenced a supervisory role and Counts 2,3 and 4 were removed from the jury's consideration, and the jury were accordingly not charged in relation to them.
The Crown submitted the language of s 157 Criminal Procedure Act is clear and unequivocal and I do not have power to permit the plea of guilty to be withdrawn.
[6]
Determination
Mr Ozen SC provided two cases in support of his submissions: R v Hura [2001] NSWCCA 61 and Regina v Timothy Ian BOAG (1994) 73 A Crim R 35.
The circumstances of Boag are divorced from this case. s 157 Criminal Procedure Act had no role to play in that case because the plea was entered before a Judge, and not a jury.
Mr Saafi may feel a degree of unfairness because of the directed verdicts of not guilty to the specially aggravated and aggravated offences afforded to his co-accused.
I note that in Boag, the Court held (Hunt CJ at CL and McInerney and James JJ agreeing):
(3) The applicant made a deliberate and fully informed choice to plead guilty because he recognized that he was guilty. The subsequent advice from different counsel led him to change his mind as to the inevitability that he would be found guilty, but it did not alter his recognition of his own guilt. A plea is a formal act admitting such guilt. Once that admission has been made (and there are no circumstances indicating that the plea was not really attributable to a genuine consciousness of guilt), tactical advice that - despite his formal admission of guilt - the Crown case may possibly not succeed if the jury takes a particular view of the evidence does not lead to a miscarriage of justice if he is held to that plea.
In Hura, the applicant was arraigned in front of a jury on a 5-count indictment. He pleaded guilty to the first count which was assault occasioning actual bodily harm to his de facto wife. The remaining counts were assault occasioning actual bodily harm, an act of indecency and two charges of sexual intercourse without consent. He pleaded not guilty to each of the four counts.
During the course of the Crown case the applicant changed his plea such that he pleaded guilty to all five counts on the indictment. The Judge accepted the pleas and discharged the jury. The Judge proceeded with hearing on sentence. The hearing was adjourned until a later date. At the further proceedings on sentence, the applicant indicated he wished to withdraw his pleas of guilty in relation to four counts on the indictment. The Judge at first instance determined he had no jurisdiction to allow a withdrawal of the guilty pleas.
The Court held,
The word "finding" in s91(2) should not be given an overly technical meaning. His Honour's acts in accepting the pleas of guilty, discharging the jury and commenting that there was no longer a need for a trial and that the pleas were "all that the law requires in order to establish his guilt" were sufficient to constitute a "finding" in the relevant sense. His Honour was correct to determine that he had no jurisdiction to entertain the application for withdrawal of the guilty pleas.
s 157 is in like terms to the s91(2) provision considered by the Court of Criminal Appeal.
Mr Ozen SC's reliance on Hura at [30] must be looked at considering other parts of the judgment.
At [17] Spigelman CJ cited Maxwell v The Queen (1995) 184 CLR 501 where Dawson and McHugh JJ said:
"Thus, whilst a plea of guilty is a confession of guilt, it does not itself amount to a conviction. A conviction does not occur until there is an acceptance of the plea amounting to a determination of guilt by the court. The determination of guilt forms part of the judgment of the court but it can occur otherwise than by the formal entry of the plea upon the record of the court. Of course, the formal entry of the plea upon the record may afford the clearest evidence of a determination of the court, and the determination may otherwise occur when the court acts so as to indicate unequivocally its acceptance of the plea."
My associate recorded the pleas of guilty entered by Mr Saafi on the indictment when they were made. It was an unequivocal acceptance of the plea, and those counts did not require jury determination. A plea of guilty upon arraignment has been said to amount to a conviction.
In Maxwell Dawson and McHugh JJ referred to the reasoning of the majority of the Court in Griffiths v The Queen (1977) 237 CLR 293 and particularly to the judgment of Aickin J in that case (see Hura at [21]). In Griffiths at [335]-[336] Aickin J said:
"It was argued for the applicant that, before there was a conviction, the trial judge must use some express words to indicate the situation, such as 'I convict the accused'. I can see no reason why conviction may not occur by indirect words or by conduct. If a trial judge does some act consistent only with there being a conviction, I do not consider that he must utter some formula to make that action effective."
Conviction takes its colour from context. In Hura, Spigelman CJ at [28] said:
The objective of the legislation was to avoid an excessively formal procedure that was devoid of substance. In such a context, the words "to find the accused person guilty of the offence" should not be given an overly technical meaning. It is sufficient if, in substance, there has been a finding of the relevant character. There does not, in my opinion, have to be a finding to this effect in express terms.
It is clear that no express advertence is required.
In my summing up to the jury on 22 May 2024, I said,
In regard to the second count, Mr Saafi has pleaded guilty to that count. You cannot use his plea of guilt in relation to count 2 in proof of count 1, it would be wrong for you to do that. And the Crown does not rely upon his plea to count 2 in proof of count 1, you have to give separate consideration to the evidence in relation to count 1, and separate consideration in relation to the evidence of count 2. But so far as Mr Saafi is concerned, you do not need to consider him in relation to charge 2 because he has pleaded guilty to it, and at some stage he will be sentenced by me in relation to that conduct.
In directing the jury in those terms that they could not use his plea of guilty in relation to Count 2 in proof of Count 1, I used language that eliminated the need for a trial or for the jury to consider Counts 2,3 and 4.
In referring to Count 2, I told the jury that "at some stage, he (Mr Saafi) will be sentenced by me in relation to that conduct," a clear expression that I had made a finding of the guilt of Mr Saafi in relation to Count 2.
I was not requested to immediately embark upon sentence or allocate a date for sentence. What I said to the jury (and repeated on several occasions) was an unequivocal indication that the accused had been found guilty.
Pursuant to s 157, I find that I have no jurisdiction to entertain the application for the withdrawal of the guilty plea to Count 2.
[7]
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Decision last updated: 03 June 2024