R v Kanaan; R v El-Assaad; R v Jamal

[2003] NSWCCA 396

CITATION:	R v. Kanaan; R v. El-Assaad; R v. Jamal [2003] NSWCCA 396
HEARING DATE(S):	16 December 2003
JUDGMENT DATE:	16 December 2003
JUDGMENT OF:	Hodgson JA at 1; Hulme J at 17; Hidden J at 18
DECISION:	Appeal dismissed.
CATCHWORDS:	CRIMINAL LAW - Appeal - Opinion of trial judge that facts alleged by Crown do not constitute offence - Whether an interlocutory judgment or order - Firearm fired from car in public place - Whether discharged in or near a public place.
LEGISLATION CITED:	Crimes Act 1900 s.93G Criminal Appeal Act 1912 s.5F
CASES CITED:	R v. Bozatsis and R v. Spanakakis (1997) 97 ACrimR 296 Cheng, R v. (1999) 48 NSWLR 616 Hardman v. DPP (NSW) [2003] NSWCA 130 Lethlean v R. (1995) 83 ACrimR 197
PARTIES :	Crown appeallant in each case Michael Kanaan - respondent (60442/03) Wassim El-Assad - respondent(60443/03) Saleh Jamal - respondent (60444/03
FILE NUMBER(S):	CCA 60442/03; 60443/03; 60444/03
COUNSEL:	Mr. A. Hudson for Crown/applicant Mr. C. Simpson for Kanaan Mr. F. Santisi for El-Assaad Mr. C. Simpson for Jamal
SOLICITORS:	Mr. S. Cavanagh for applicant Mr. K. Kyriacou for Kanaan Mr. K. Lee for El-Assaad Unknown for Mr. Jamal

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	00/11/0979
LOWER COURT JUDICIAL OFFICER :	Shadbolt DCJ

CCA 60442/03
CCA 60443/03
CCA 60444/03
DC 00/11/0979

HODGSON JA
HULME J
HIDDEN J

Tuesday 16 December 2003

REGINA V. Michael KANAAN

REGINA V. Wassim EL-ASSAAD

REGINA V. Saleh JAMAL

Judgment

1 HODGSON JA: On 20 October 2003 the three respondents appeared for trial before Shadbolt DCJ. The Crown passed up an indictment containing one count, namely, that on 11 November 1998 at Redfern in the State of New South Wales they fired a firearm in or near a public place, namely, Eveleigh Street, this being an offence under the Crimes Act 1900, s.93G(1)(b). It is convenient at this stage to set out s.93G(1) of the Crimes Act, which is in the following terms:

93G Causing danger with firearm or spear gun
(1) Any person who:
(a) possesses a loaded firearm or loaded spear gun:
(i) in a public place, or
(ii) in any other place so as to endanger the life of any other person, or
(b) fires a firearm or spear gun in or near a public place, or
(c) carries or fires a firearm or spear gun in a manner likely to injure, or endanger the safety of, himself or herself or any other person or any property, or with disregard for the safety of himself or herself or any other person,
is liable to imprisonment for 10 years.

2 In the course of argument concerning some preliminary points, the Crown briefly opened the case, indicating that it would be alleged that the three accused drove down Eveleigh Street in a stolen car and discharged a firearm from that car.

3 On 22 October 2003, the trial judge drew to the attention of counsel the case of Hardman v DPP (NSW) [2003] NSWCA 130, in which the Court of Appeal decided by majority that possession of a loaded firearm in a motor vehicle on a public road does not constitute possession of that firearm in a public place for the purposes of s 93G(1) (a) of the Crimes Act. The trial judge was concerned that he should not embark on a lengthy trial, when the facts might not disclose an offence known to the law; and it appears that he took submissions from counsel on that question. On that day he delivered reasons for judgment in which he discussed the effect of Hardman, and he concluded as follows:

If possession of a firearm in a car is not possession in a public place for the purpose of s93G(1)(a)(i) then discharging a firearm from a car on a public street is not discharging it in a public place under s93G(b). Nor can it be said that the firearm has been discharged near a public place when it has been discharged from a motor vehicle in a public street which is plainly in a public place.

Despite these reservations expressed above, this Court is bound by the decision in Hardman and must apply it. The facts which the Crown has indicated he intends to prove would not, having regard to this judgment, constitute an offence and I am mindful to empanel a jury and to order an acquittal.

In order to permit the Crown to seek leave to appeal to the Court of Criminal Appeal I will adjourn the case to be mentioned in three weeks time. I indicated to counsel that bail for Jamal will remain unaltered and the other two are serving sentences, I understand.

I certify this is a proper case for the Court of Criminal Appeal and thereby grant a certificate under s5F, but I have been informed by the Crown before delivering this judgment that Hardman's case itself is likely to be appealed as the Director of Public Prosecutions is seeking leave to appeal to the High Court. Nevertheless, confronted with the situation as I perceive it in the case before me, I will continue with the course I have determined.

4 The Director of Public Prosecutions has brought an appeal, purportedly under s.5F of the Criminal Appeal Act 1912 to the Court of Appeal against a judgment or order made by the trial judge, identified in the notice of appeal as follows:

That, on the outline of the Crown case, there can be no prima facie case with respect to the offence charged on the proposed indictment.

5 Section 5F in the Criminal Appeal Act is in the following terms:

5F Appeal against interlocutory judgment or order
(1) This section applies to:
(a) proceedings (including committal proceedings) for the prosecution of offenders on indictment in the Supreme Court or in the District Court, and
(b) proceedings under Division 5 of Part 2 of Chapter 3 of the Criminal Procedure Act 1986 , and
(c) proceedings in Class 5 of the Land and Environment Court’s jurisdiction (as referred to in section 21 of the Land and Environment Court Act 1979 ).

(2) The Attorney General or the Director of Public Prosecutions may appeal to the Court of Criminal Appeal against an interlocutory judgment or order given or made in proceedings to which this section applies.

(3) Any other party to proceedings to which this section applies may appeal to the Court of Criminal Appeal against an interlocutory judgment or order given or made in the proceedings:
(a) if the Court of Criminal Appeal gives leave to appeal, or
(b) if the judge or magistrate of the court of trial certifies that the judgment or order is a proper one for determination on appeal.

(4) An appeal under this section shall, unless the Court of Criminal Appeal gives leave to adduce fresh, additional or substituted evidence, be determined on the evidence (if any) given in the proceedings to which the appeal relates.

(5) The Court of Criminal Appeal may:
(a) affirm or vacate the judgment or order appealed against, or
(b) give or make an interlocutory judgment or order instead of the judgment or order appealed against.

(6) If leave to appeal under this section is refused by the Court of Criminal Appeal, the refusal does not preclude any other appeal following a conviction on the matter to which the refused application for leave to appeal related.

(7) A person may not appeal to the Court of Criminal Appeal under this section against an interlocutory judgment or order if the person has instituted an appeal against the interlocutory judgment or order to the Supreme Court under Part 5 of the Crimes (Local Courts Appeal and Review) Act 2001 .

6 One requirement for an appeal under s.5F is that there be an interlocutory judgment or order, and plainly there is a real question in this case whether there is such a judgment or order.

7 There is no bright line for discriminating between judgments or orders on the one hand, and rulings which do not constitute judgments or orders on the other: see Lethlean v R (1995) 83 ACrimR 197, R v. Bozatsis and R v. Spanakakis (1997) 97 ACrimR 296. At p.303 in the report of Bozatsis and Spanakakis, Gleeson CJ stated that, in order to constitute a judgment or order, even an interlocutory judgment or order, there must be a measure of finality so that it requires a decision of an appellate Court to reverse it.

8 In my opinion there is nothing of that nature here. The Crown has submitted that the first two sentences in the passage from the trial judge's reasons that I have quoted, were final rulings which were the basis of procedural orders which the trial judge made, including orders adjourning the proceedings. However, there is no challenge made to those procedural orders and, in my opinion, the sentences referred to are in substance reasons rather than being themselves judgments or orders.

9 I would add that, if what occurred were to be treated as a determination to direct a verdict of acquittal in certain circumstances, it would be necessary for the Crown to distinguish the case of R v Cheng (1999) 48 NSWLR 616. In so far as that case was decided on the basis of the principle against double jeopardy, it may be that that case could be distinguished, because the indication that a direction of acquittal would be made occurred in that case after the end of the Crown case when the accused had already faced a substantial trial before a jury. That is not the situation here. However, it appears that another basis on which Cheng was decided was that there was no judgment or order actually made, and also that the judgment or order under contemplation, that is the direction of a verdict of acquittal, would amount to a final order, not an interlocutory order.

10 In any event, as I have said, in my opinion there was in this case no judgment or order; and for that reason it seems to me that the appeal must be dismissed as incompetent.

11 I would add two things.

12 I do not think this means there is no possibility of a remedy in this sort of situation. Although it is undesirable that the Supreme Court intervene in criminal proceedings by way of declaratory relief or prerogative relief, that is a possibility that is open and, in some circumstances, the Court may be prepared to intervene if there is a clear question of law which, without the Court's intervention, might result in an inappropriate direction of acquittal.

13 The other matter I would mention concerns the merits of the question that has been raised. In my opinion, since the matter has been debated, it is not inappropriate for this Court to express a view on the matter.

14 The Crown has informed us that there has been an amendment to the relevant provisions of the Crimes Act; but it appears that the amendment is not retrospective, so this case will continue to be governed by the previous law. The case of Hardman, as I understand it, is the subject of an application for special leave to appeal to the High Court. I do not think it would be appropriate, in making these passing comments to express any view as to the correctness of that decision. Any comments that this Court makes should be on the basis that Hardman is correct.

15 However, it seems to me that that decision does not govern this case. The offence charged in this case, of discharging a firearm in or near a public place is, in my opinion, a single offence, so that there is no duplicity in the Crown bringing a charge in those terms; and the charge would be proved if the jury is satisfied beyond reasonable doubt that a firearm was discharged, either in or near a public place, without the necessity of determining which of the two it was. If a firearm is discharged through the open window of a car, it may be arguable that it is no longer insulated from a public place in the way that supported the decision in Hardman, that the possession of a loaded firearm inside a motor vehicle on a public road did not constitute possession of a firearm in a public place. However, if Hardman is not distinguishable on that basis, then it seems to me that the discharge of a firearm through the window of a car, which is itself in a public place, must be considered a discharge of a firearm near a public place; and I do not see any difficulty with that conclusion arising from the fact that the car itself is in a public place.

16 However, for the reasons I have indicated, in my opinion, the appeal should be dismissed as incompetent.

17 HULME J: I agree with the order proposed and the reasons of the presiding judge.

18 HIDDEN J: I also agree.

19 HODGSON JA: The appeal is dismissed.

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Last Modified: 12/23/2003