| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCR 2022 0132 |
| FADI DIAB | Applicant |
| v | |
| THE KING | Respondent |
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| JUDGES: | BEACH, NIALL and KAYE JJA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 1 May 2023 |
| DATE OF JUDGMENT: | 11 May 2023 |
| MEDIUM NEUTRAL CITATION: | [2023] VSCA 107 |
| JUDGMENT APPEALED FROM: | [2022] VCC 788 (Judge Chambers) |
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CRIMINAL LAW – Appeal – Conviction – Charges of discharging a firearm being reckless as to safety of police officers contrary to s 31C of Crimes Act 1958 – Prosecutor advancing argument in address that was unsupported by evidence – Whether capable of being redressed by direction by trial judge – Whether verdicts unreasonable or could not be supported by evidence – Applicant discharging firearm at night a few seconds after arrival of unmarked police vehicle – Whether open to jury to conclude applicant heard and understood identification by police – Appeal allowed – Convictions quashed – Applicant convicted on alternative charge of discharging weapon at vehicle contrary to s 131A(1) of Firearms Act 1996.
Pell v The Queen (2020) 268 CLR 123.
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| Counsel | ||
| Applicant: | Mr D Dann KC | |
| Respondent: | Ms E Ruddle KC with Ms B Goding | |
Solicitors | ||
| Applicant: | Marcevski Lawyers | |
| Respondent: | Ms A Hogan, Solicitor for Public Prosecutions | |
BEACH JA
KAYE JA:
The applicant was charged on an indictment containing five charges. Following pre-trial argument, the indictment was severed. The first indictment contained two charges of discharging a firearm, being reckless as to the safety of a police officer (contrary to s 31C(1) of the Crimes Act 1958), and one charge of discharging a firearm at a vehicle (contrary to s 131A(1) of the Firearms Act 1996). The third charge was an alternative to the first two charges. The applicant pleaded not guilty to the first two charges, but guilty to the third charge. Following a trial before a jury, the applicant was convicted of the first and second charges on the indictment.
The second indictment contained one charge of possession of a general category handgun without a licence (contrary to s 7(1) of the Firearms Act), and one charge of handling stolen goods, namely, a .38 Smith & Wesson revolver (contrary to s 88 of the Crimes Act). The revolver was the firearm that was the subject of the three charges on the first indictment. The applicant pleaded guilty to the two charges on the second indictment, as well as to a summary charge of failing to store cartridge ammunition (contrary to s 121(1A) of the Firearms Act).
Following a plea, presented on his behalf, the applicant was sentenced, in respect of the charges, to a total effective sentence of 7 years, 5 months and 18 days’ imprisonment, with a minimum non-parole period of 5 years.
The applicant seeks leave to appeal his conviction on the two charges on the first indictment on three grounds, namely:
1.The Learned Trial Judge erred in the approach to Section 108A and 108B of the Evidence Act 2008.
2.A…
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- AGLC
- Diab v The King [2023] VSCA 107
- Case
- [2023] VSCA 107
- Decision Date
CaseChat Overview and Summary
The Court held that the trial judge's direction to the jury was insufficient to redress the unsupported argument advanced by the prosecutor. The argument that Diab had fired three shots was inconsistent with the evidence presented, and the prejudice caused by this argument could not be sufficiently dispelled by the judge's direction. The Court found that the verdicts were unreasonable or unsupported by the evidence, as the jury's conclusion that Diab had fired three shots was not consistent with the direct evidence. The Court also held that it was open to the jury to conclude that Diab had heard and understood the police identification, based on the circumstances of the case.
As a result of the Court's decision, Diab's convictions for discharging a firearm being reckless as to the safety of police officers were quashed. However, he was convicted on the alternative charge of discharging a weapon at a vehicle, in contravention of s 131A(1) of the Firearms Act 1996. The Court's decision highlights the importance of ensuring that arguments presented to the jury are supported by evidence, and that any unsupported arguments are sufficiently redressed by the trial judge's directions. It also underscores the need for careful consideration of the circumstances of each case, in determining whether it was open to the jury to draw certain inferences.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
In accordance with that ruling, the judge, in the course of her charge, gave the jury specific directions to that effect. Her Honour gave the jury the usual directions, relating to the drawing of inferences. In that connection, she referred to the fact that the prosecution had argued that the jury could infer, based on answers given by the applicant in his record of interview, that three shots had probably been fired by him on the night of the incident. The judge then instructed the jury in the following terms:However, this inference was neither consistent with the evidence of Acting Sergeant Stacey, that he heard one, possibly two shots. His evidence of that is found at Transcript 124, Line 28. Nor is it consistent with that of Senior Constable Gee, that the initial shot came from the location of the male and that he heard two or three shots in general, meaning once he had included the shots fired by Acting Sergeant Stacey. Although Leading Senior Constable Griffiths gave evidence of three indented cartridges being found in the handgun. He could not say when they had been discharged.The evidence is that only one bullet from Mr Diab’s firearm was located which was the bullet lodged in the car door. The inference that three shots were probably fired is not consistent with the direct evidence in the case. It could only safely be inferred that three shots were fired if that is the only rational inference that can be drawn from the evidence. Here, however, it is not. Another reasonable inference based on the direct evidence is that only one, possibly two shots were fired from Mr Diab’s firearm that night.I again remind you that the prosecution case relates to the one shot only, that is the shot that was fired at the police vehicle and it is the circumstances in which that shot was fired that will be the focus of your attention. On the present application, counsel for the applicant, under ground 1, reiterated the submission, that he had made to the trial judge, that the answers given by the applicant, in the interview, concerning how he had come into possession of the firearm, were irrelevant and should have been excluded from the evidence. As mentioned, counsel submitted that the evidence, having been wrongly admitted, was misused by the prosecutor as the foundation for the submission that the applicant had fired three shots from the firearm. That proposition involved an implied attack by the prosecution on the credibility of the account, given by the applicant in the interview, as to the circumstances in which he had come to fire the shots at the police members. In particular, it was submitted, the proposition that the applicant fired three shots tended to undermine the account that he gave to police as to the circumstances, in which he had fired two shots at the police members. Counsel further submitted that the proposition, advanced by the prosecution, had no foundation in the evidence. In particular, Acting Sergeant Stacey gave evidence that the applicant had only fired one shot, and ‘maybe’ a second shot. Senior Constable Gee gave evidence that he heard two or three gunshots. In view of the fact that Acting Sergeant Stacey had fired two shots at the applicant, Gee’s evidence was inconsistent with the theory that the applicant had fired three shots. Further, Leading Senior Constable Griffiths gave evidence that there was only one fired bullet located by the police at the scene, that could have come from the applicant’s firearm. Counsel submitted that the prejudice, that was occasioned to the applicant, by reason of the wrongful submission advanced on behalf of the prosecution, could not be sufficiently dispelled by any direction, given by the judge to the jury. Accordingly, it was submitted, that there had been a high degree of necessity for the judge to have discharged the jury without verdict.