Ahmed v The Queen

[2012] NSWCCA 260

Court of Criminal Appeal

New South Wales

Case Title:	Ahmed v R
Medium Neutral Citation:	[2012] NSWCCA 260
Hearing Date(s):	24 September 2012
Decision Date:	10 December 2012
Before:	McClellan CJ at CL at [1] Hidden J at [2] Adamson J at [3]
Decision:	(1) Grant leave to appeal. (2) Order that the appeal be dismissed.
Catchwords:	CRIMINAL LAW - appeal against conviction - whether upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty - whether miscarriage of justice occasioned by the trial judge directing the jury that they were prohibited from returning different verdicts in respect of two counts on the indictment - whether the trial judge misdirected the jury as to facts which gave rise to being an accessory after the fact
Legislation Cited:	- Crimes Act 1900 - Firearms Act 1996
Cases Cited:	- M v The Queen [1994] HCA 63; 181 CLR 487 - Chen v R [2010] NSWCCA 224 - MFA v The Queen [2002] HCA 53; 213 CLR 606 - Zoneff v The Queen [2000] HCA 28; 200 CLR 234 - Dhanhoa v The Queen [2003] HCA 40; 217 CLR 1 - FP v R [2012] NSWCCA 182
Category:	Principal judgment
Parties:	Bilal Ahmed (Applicant) Regina (Respondent)
Representation
- Counsel:	Counsel: A Francis (Applicant) E Balodis (Respondent)
- Solicitors:	Solicitors: Bannister Lawyers (Applicant) Solicitor for Public Prosecutions (Respondent)
File Number(s):	2010/133875
Decision Under Appeal
- Before:	Finnane DCJ
- Date of Decision:	31 January 2011
- Court File Number(s):	2010/133875

JUDGMENT

1. McCLELLAN CJ at CL: I agree with Adamson J.

2. HIDDEN J: I agree with Adamson J.

3. ADAMSON J: The applicant seeks leave to appeal against his convictions following a trial by jury conducted by Finnane DCJ for the offences of firing a firearm in a public place contrary to s 93G(1)(b) of the Crimes Act 1900 (the first count) and unlawful possession of a firearm contrary to s 7(1) of the Firearms Act 1996 (the second count).

The facts

1. On 28 May 2010 in the evening, at about 10.25 pm, two police officers in an unmarked car on Punchbowl Road near the intersection of Waratah Street, Punchbowl heard three or four gunshots. The noise appeared to come from Waratah Street. A few seconds later, the police officers saw a car coming out of Waratah Street at faster than the normal speed for that road. The car braked suddenly at the corner of Waratah Street and Punchbowl Road before turning left and driving along Punchbowl Road. The police followed the car and observed that it stopped at the intersection with Defoe Street and then turned right into Defoe Street at speed without indicating. The police officers activated the siren and flashed the headlights but the car did not stop until it reached the driveway of the applicant's house, which was a few streets away.

2. The applicant was the driver of the car, a Toyota Corolla, which had been hired by Bilal Razzak on 19 May 2010. The front passenger, Mr Razzak, got out of the car carrying a Glock pistol. There was a 16-year old passenger in the rear of the car. There was no evidence that the applicant possessed or fired the pistol.

3. Three cartridge cases were found by police on Waratah Street "a couple of metres" or "in close proximity" to each other. One of the cartridge cases was 35 metres from the Punchbowl Road intersection and 1.5 metres from the kerb. The presence of two further cartridge cases which were found in the hire car gave rise to the inference that the shots referable to the three cartridges that had been found on Waratah Street had been fired by Mr Razzak while he was in the hire car.

The Crown case

1. The Crown case, which was wholly circumstantial, was that the applicant had aided and abetted Mr Razzak to commit the offences. The Crown relied on the following circumstances: first: that the applicant had driven the car which Mr Razzak had hired, which permitted Mr Razzak to fire the shots; secondly, the applicant had slowed, or stopped the hire car while the shots were fired; and thirdly, that, after the shots were fired, the applicant had driven off at high speed rather than taking advantage of the presence of police in the course of the pursuit to disassociate himself from Mr Razzak.

The applicant's case at trial

1. The applicant did not give evidence at the trial.

2. The hypothesis consistent with innocence for which the applicant contended at trial was that he had nothing to do with the shooting, that he did not know that there was a gun in the car and that he drove off in a panic.

Grounds of appeal

1. There are four grounds of appeal which will be considered in turn.

Ground 1: the verdict is unreasonable and cannot be supported on the evidence

1. The question which an appellate court must ask itself when invited to set aside a conviction on this ground was articulated in M v The Queen [1994] HCA 63; 181 CLR 487 at 493, per Mason CJ, Deane, Dawson and Toohey JJ:

   "... whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty."

2. In answering that question, this Court is to pay proper regard to the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, and to the benefits the jury has had in having heard and seen the witnesses. The High Court said, in M:

   "If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence."

3. The High Court, by majority, emphasised the nature of the task to be performed in SKA v The Queen (2011) 243 CLR 400 at [14]:

   "In determining an appeal pursuant to s 6(1) of the Criminal Appeal Act, by applying the test set down in M and restated in MFA, the court is to make 'an independent assessment of the evidence, both as to its sufficiency and its quality'. In M, Mason CJ, Deane, Dawson and Toohey JJ stated:

   In reaching such a conclusion, the court does not consider as a question of law whether there is evidence to support the verdict. Questions of law are separately dealt with by s 6(1). The question is one of fact which the court must decide by making its own independent assessment of the evidence and determining whether, notwithstanding that there is evidence upon which a jury might convict, 'none the less it would be dangerous in all the circumstances to allow the verdict of guilty to stand'."

4. As referred to above, the Crown case was wholly circumstantial. The Crown relied on inferences from primary facts which were not in issue. Since these primary facts did not depend on the credibility of witnesses, the jury has no advantage to which this Court must have regard when performing the independent assessment of the evidence required by this ground of appeal.

5. I consider that the three propositions that founded the Crown case set out above, which were established by the evidence, are ample to satisfy a jury beyond reasonable doubt that the applicant aided and abetted Mr Razzak to fire a firearm in a public place and to possess an unlawful firearm. The fact that the applicant was driving a car which was hired by Mr Razzak is significant. Further, even if the applicant was not aware that Mr Razzak was in possession of a gun before the first shot, he must have been aware of that fact as soon as the first shot was fired. That three cartridge cases were found in close proximity to each other demonstrates that the vehicle must have been stationary or moving very slowly when the shots were fired. This circumstance inevitably required the co-operation of the driver. The applicant accepted that such a conclusion was open.

6. The applicant's conduct in continuing to drive Mr Razzak to the applicant's residence rather than stop when he must have realised that the police were endeavouring to pull him over could reasonably have been used by the jury to infer that the applicant had assisted Mr Razzak when he had fired the shots by driving the car in such a fashion as would facilitate the shooting.

7. The evidence in the Crown case was compelling. It was open to the jury to reject the hypothesis for which the applicant contended. Having reviewed the whole of the evidence I have no doubt that the applicant was guilty of the two offences.

8. Accordingly, in my view, this ground fails.

Ground 2: a miscarriage of justice has been occasioned by the trial judge directing the jury that they were prohibited from returning different verdicts in respect of counts one and two

1. The summing up included the following passage:

   "Although there's two separate charges and you must give a verdict in relation to each of those they are so intermingled that it would be perverse to give a different verdict on each. The person who possessed fired. You can't fire a weapon unless you possess it. But if the accused intended to assist him he must have intended to assist him in relation to both matters."

2. Later, when answering a question, his Honour indicated in the following terms that the possession and discharge of the pistol could not be differentiated:

   "Once he produced it [the gun] he showed he was possessing it. Then he fired it. So there is no doubt from the evidence that the accused knew from that point Mr Razzak had the gun in his hand and was firing it, that he possessed the gun and was firing the gun."

3. I am not persuaded that his Honour was giving a direction rather than making an observation or giving a warning to the jury about how they should reason. Although trial judge may comment on the facts, such a comment is not binding on the jury: RPS v The Queen [2000] HCA 3; 199 CLR 620 at [42].

4. The extent to which a trial judge is permitted to comment to a jury on factual issues was considered by this Court in Chen v R [2010] NSWCCA 224 at [51]-[54]. RS Hulme J, with whom Basten JA and Schmidt J agreed, said:

   "It is unnecessary for me to refer in any detail to those cases as it is clear law that a judge is entitled to form a view and comment strongly to a jury on factual issues - see R v Zorad (1990) 19 NSWLR 91 at 106-7; RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620 at [42]; Azzopardi v The Queen [2001] HCA 25; (2001) 205 CLR 50 at [87]; R v Meher [2004] NSWCCA 355 at [78] et seq.

   How strongly is demonstrated by the decision of the High Court in Tsigos v The Queen in which judgment was delivered on 14 April 1965. The case is the subject of a note at 114 CLR 671...

   The passage in the summing up of the trial judge to which exception was taken was in the following terms:-

   'When we resume I shall call to your mind the evidence that has been given in this case; the facts which are not contradicted or which are contradicted, and it is for you to make up your mind on the facts as they have been given in evidence here without fear of (sic) favour on your part, to say whether or not the Crown has proved the charge of murder or, if you are not satisfied of that, you then consider the question of manslaughter. I think I should tell you this, gentlemen, on the evidence before the Court it is my duty to tell you that you will be flying in the face of the oath you took, namely, to return a verdict on the evidence, if you were to return a verdict of acquittal, because on the evidence I can see no escape of the verdict of guilty of murder or manslaughter.'

   Having quoted the passage, Barwick CJ observed that the question which had exercised the court's mind was whether, taken in the context of the trial and of the summing up as a whole, the trial judge had conveyed to the jury that they could not, as distinct from should not, acquit the Appellant. Observing that the trial judge 'was entitled to express to (the jury) his own view of the facts, reminding them that none the less they were the sole judge of them and at liberty to discard his views', his Honour's conclusion was that 'however unnecessary... to speak as he did' the trial judge said no more than he was entitled to do."

5. I do not consider that the comment or warning was inappropriate since it served to avoid a compromise verdict: namely, a conviction for aiding the possession of the pistol but not for aiding its discharge. If different verdicts had been given it would have been an "affront to logic and commonsense" and would suggest a compromise in the performance of the jury's duty: MFA v The Queen [2002] HCA 53; 213 CLR 606 at [85]-[86].

6. Even if what I regard as a comment amounted to a direction, it was one which, in my view, the trial judge was entitled to give in order to avoid a compromise verdict. No redirection was sought, for good reason. The direction obviated the risk of a compromise verdict. The removal of the possibility of a compromise verdict tended to favour the applicant. A miscarriage of justice has therefore not occurred.

Ground 3: a miscarriage of justice has been occasioned leaving, as a basis of conviction, facts which gave rise to being an accessory after the fact to the commission of counts one and two

1. The Crown case was that the applicant aided and abetted Mr Razzak in possessing the firearm and shooting the firearm in a public place. The Crown did not contend that the applicant was an accessory after the fact. Accordingly, the acts of the applicant in driving away from the location from which the shots were fired were relevant only in so far as they were capable of shedding light on the applicant's intention up until the time at which the last shot was fired. They did not separately constitute an offence.

2. Although the acts constituting the offences of possession and firing a firearm in a public place occurred at a particular time, it is artificial to dissect the periods of time into segments. The driving of the car prior to the shooting is part of the same transaction as the driving of the car after the shooting.

3. The applicant submitted that the jury asked two questions that indicated that it was concerned about the relevance of the post-shooting conduct and that the trial judge's answers revealed an error of law. The first question the jury asked was:

   "Does the assistance to 'leave the crime scene' of itself constitute an intention to assist in the crime?"

4. The applicant submitted that this question had to be answered "no".

5. The trial judge did not give a direct answer to the question at the outset. Rather, his Honour went through the whole course of events and referred to the location of the three cartridges that were found outside the car. His Honour then addressed the question more directly but still in a way that put the post-shooting driving in context. The passage in the summing up that contains the most direct answer to the question is:

   "The clear facts are the cartridges are on the road. There are clear facts then about the course of the driving, they are not contested in any way whatsoever. So the entire evidence in the case about the manner of driving, the place of the cartridges and what happened at the house comes from the police evidence. It is not disputed in any [sic] whatsoever. So you are asked to draw a conclusion as to the intention of the accused in driving the car, from looking at all that evidence. Does that enable you to draw the inference that he intended to assist? The mere fact that he is leaving what was a crime scene, that is the firing of weapons, would not in itself mean anything, perhaps. If he were taken by surprise and his passenger suddenly pulled a gun out, because of the crimes is possessing the weapon, and then surprisingly fired shots and he drove away, he knowing nothing about it till that point, that in itself does not establish a guilty intent. It might, but it might not, it depends on the inferences you draw. The question really comes down to this, are you satisfied that what he did showed an intention to assist. I have given you analogies."

6. The jury then asked a further question:

   "If we can't establish that the defendant knew the gun was in the car but his intent was to flee the scene with the shooter is that enough to establish guilt?"

7. Once again, the trial judge did not answer the question directly. His Honour answered the question by reference to the course of events. His Honour's answer included the following:

   "The question is when he continued on the journey was he doing that intending to assist him? Was he doing that to help him flee from the scene? Or was he merely - as Mr Quinn put it - going to his home in order to escape himself from the consequences of being in the car with a man who's shooting? That's the question you have to determine. At some point he must have become aware that Mr Razzak had a gun. It's not possible to fire a gun from a car without the driving of the car knowing it was fired, it's not possible. So the question is when he was driving the car was he doing that intending to assist him? Or was he doing it without that intention?

   ...

   Now you have to determine whether you are satisfied beyond reasonable doubt that from the point that the gun was produced was the accused intending to assist Mr Razzak? And from the point the gun was fired was he intending to assist Mr Razzak? If you are not satisfied beyond reasonable doubt that he was you find him not guilty. If you are satisfied beyond reasonable doubt that he was you find him guilty, so it is a question of what was his intention."

8. The applicant submitted that the cumulative effect of these two questions was to demonstrate that the jury did not understand that the relevance of the applicant's driving away from the scene was confined to what it showed about his knowledge and his intention prior to, and at the time of, the shooting. The applicant contended that the content of the second question revealed that the jury was labouring under the misapprehension that it was enough if the applicant intended to assist Mr Razzak to leave the location of the shooting, even if he had not intended to assist him in the possession of the gun and its firing.

9. The applicant submitted that the trial judge on neither occasion told the jury directly that the post-shooting conduct was not in itself an offence and that its only relevance was that it might form the basis of an inference as to the applicant's intention at the time of the shooting.

10. The Crown submitted that in answer to the second question the trial judge made clear to the jury that the relevant time at which the applicant's conduct was to be judged was the time of the firing of the pistol, which was also the time at which the accused's conduct with respect to the possession of the pistol was to be judged. So much appears from the last paragraph of the answer set out above.

11. The first question admitted of a straightforward "no" answer. In my respectful view, his Honour should have answered the first question directly and said, in substance, "No, it is not enough." However, in circumstances where it was not suggested by the Crown that "assistance to leave the crime scene" was enough to establish guilt, I consider that the jury was correctly instructed as to what the Crown had to prove and how the jury could use the applicant's conduct in driving away from the scene of the shooting.

12. The second question did not admit of a simple "no" answer. The second question appeared to be based on a false premise. Even if the applicant did not initially know the gun was in the car, he must have known as soon as the first shot was fired, if not before. This occurred before he drove from the location since two or three further shots were fired after the first, at a time when the car was either stationary or moving slowly. The trial judge did not, in my view, fall into error by answering the second question as his Honour did. Indeed it is difficult to see how the trial judge could properly have answered the question without addressing the whole transaction although the question directed attention to the beginning and the end of the transaction.

1. Where individual sentences are scrutinised as if they were divorced from the whole, the exercise can acquire an air of unreality for the way in which a criminal trial is conducted. For example, much was made by the applicant of the word "perhaps" in the following extract:

   "The mere fact that he is leaving what was a crime scene, that is the firing of weapons, would not in itself mean anything, perhaps."

2. The summing up is given orally and the questions are answered orally. It is important that the effect of a trial judge's answer to a question posed by the jury be considered as a whole.

3. Had the jury not asked the second question, there may have been an issue whether his Honour's answer to the first question was sufficiently clear.

4. However, in my view, the last passage of the answer to the second question set out above, was sufficient to alert the jury to the relevant time with which they were concerned. It was also sufficient to disabuse the jury of any misapprehension that the mere act of driving away could amount to an offence in itself.

Ground 4: a miscarriage of justice has been occasioned by an absence of direction in respect of consciousness of guilt attaching to the applicant's driving away from the crime scene

1. The applicant's contention on this ground appears from the following passage in his written submissions:

   "No proper directions were given as to 'consciousness of guilt' attaching to the manner of driving after the discharge of the firearm, and, no doubt this was so because His Honour fell into the error contended for in Ground Two namely that this conduct, pursued with the intent of assisting the principal after the fact, constituted liability for the commission of both offences."

2. For the reasons given above, I do not consider that his Honour misapprehended the way in which the Crown put its case against the applicant, or the relevance of the applicant's driving after the shooting. If the jury inferred that the applicant continued to drive the hire car in order to assist Mr Razzak, it could more readily infer that the applicant intended to assist him prior to, and during the course of, the commission of the offences.

3. A consciousness of guilt direction should generally only be given if the Crown contends that a lie or flight is evidence of guilt. There may be some cases where no such contention is made, but the trial judge nonetheless considers that a direction should be given to avoid misunderstanding: Zoneff v The Queen [2000] HCA 28; 200 CLR 234, at [16]-[17].

4. In the instant case, the Crown did not rely on the driving away from the scene as amounting to a consciousness of guilt; rather it was relied on as assistance that could support an inference that the applicant intended to assist Mr Razzak prior to, and during the commission of the offences of possessing and firing a firearm. If there was any "flight from justice", this would only have begun once the applicant turned into Defoe Street. A direction that referred to this aspect of the journey would have tended to confuse the jury and place undue importance on a relatively small part of the overall transaction. Although the jury used the word "flee" in its second question set out above, I consider it to be mere speculation to suppose that the jury was using the term in the way it would have been used had it been relied upon as a consciousness of guilt.

5. Furthermore, that his Honour was not asked to give such a direction is a powerful indication that it did not occur to those present at the trial that flight or consciousness of guilt was an issue, and that neither the applicant's counsel, nor the trial judge, considered that an injustice was being done: Dhanhoa v The Queen [2003] HCA 40; 217 CLR 1 at [63]-[64], per Gummow and McHugh JJ; FP v R [2012] NSWCCA 182 at [148], per RA Hulme J with whom McClellan CJ at CL and Schmidt J agreed.

6. I do not consider that any error has been shown. Nor do I consider that there is a reasonable possibility that the verdict of guilty would have been different if the trial judge had given a direction concerning flight. Indeed, had his Honour given such a direction, it would have made it difficult for the jury to disregard consciousness of guilt as an issue and diverted them from the principal significance to the Crown case of the applicant's act of driving.

Orders

1. For the foregoing reasons, none of the grounds of appeal has been made out. I would grant leave to appeal but dismiss the appeal.

2. Accordingly, I propose the following orders:

   (1)Grant leave to appeal.

   (2)Order that the appeal be dismissed.

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