Citation: Regina v Emad Ahmed [2001] NSWCCA 450
Court: NSW Court of Criminal Appeal
Date: 21 November 2001
Judge(s): Heydon JA, Dowd J, Bell J (Bell J delivered the principal judgment; Heydon JA and Dowd J agreed)
Background
The appellant was the proprietor of a fruit shop in Ingleburn. According to the Crown case, he recruited an employee to burn down the shop so that the appellant could collect insurance money. The employee carried out the arson on the night of 27 March 1999, following instructions that included purchasing petrol from multiple outlets and obtaining spare keys to the premises.
The appellant was tried before Freeman DCJ and a jury in the District Court at Penrith. The indictment contained two counts framed in the alternative: being an accessory before the fact to intentional damage by fire with a view to making a gain (under s 197(b) of the Crimes Act 1900 (NSW)), and being an accessory before the fact to malicious damage by fire (under s 195(b) of the same Act). The jury convicted on the first count.
The appellant was sentenced to eighteen months imprisonment with a nine-month non-parole period, ordered to be served by way of home detention. He appealed against both conviction and the severity of sentence.
Legal Issues
- Whether there was sufficient evidence to support a conviction under s 197(b) and s 346 of the Crimes Act 1900, and whether the trial judge should have directed a verdict of acquittal
- Whether the trial judge misdirected, or failed to direct, the jury as to the elements of the offence
- Whether the trial judge erred in admitting evidence of conversations between the employee and two witnesses (Danielle and Cormack Champion), including alleged hearsay statements
- Whether the trial judge should have given the jury an unreliability warning under s 165(1)(a) of the Evidence Act 1995 regarding the Champions' evidence
- Whether the sentence was excessive in the circumstances
Decision
Conviction appeal (Grounds 1 and 2): The Court noted that no application for a directed verdict of acquittal had actually been made at trial, only an application for a "Prasad direction" (a direction allowing the jury to acquit without hearing the full defence), which was refused. Bell J found that the evidence was capable of supporting the conviction and that no error of law had been established in the trial judge's directions to the jury.
Evidence grounds (Grounds 3 to 5): The Court addressed arguments concerning the admissibility and treatment of evidence from Danielle and Cormack Champion. The appellant's conduct during a conversation with Cormack Champion, including his focused attention and his remark about padlocks after being told one had not been disposed of, was held to be capable of constituting an admission. Bell J found this evidence was relevant and properly admitted.
On the hearsay question, Bell J held that the trial judge was not obliged to direct the jury to ignore the Champions' accounts of what the employee had said in their presence. Under s 165(1)(a) of the Evidence Act 1995, a warning about the potential unreliability of such evidence was only required if a party requested it. No such request had been made at trial. Bell J found nothing in the evidence that required the judge to give such a direction without a request, and leave to rely on this ground under the Criminal Appeal Rules was refused.
Sentence appeal (Ground 6): No written submissions were advanced in support of this ground. The Court found no error in the exercise of the sentencing discretion. The offence carried a maximum of fourteen years imprisonment, and Bell J noted that arson of this character required appropriate weight to be given to general deterrence. The appellant's otherwise good character had been taken into account by the sentencing judge. The sentence was not found to fall outside the range of a sound exercise of discretion.
Orders Made
- Appeal against conviction dismissed
- Leave to appeal against the severity of sentence granted
- Appeal against sentence dismissed
Key Takeaways
- A trial judge is not obliged to give an unreliability warning under s 165(1)(a) of the Evidence Act 1995 in the absence of a request from a party, provided nothing in the evidence independently compels such a direction.
- Conduct and words in the face of assertions made by a third party can be capable of constituting an admission, and evidence of that kind is not necessarily irrelevant or inadmissible.
- In dismissing the sentence appeal, the Court of Criminal Appeal confirmed that offences involving arson for insurance purposes attract significant weight for general deterrence, even where the offender is otherwise of good character.
- No error in a trial judge's direction to the jury will be found simply because an alternative direction could have been given, where the directions actually given were adequate for the jury to determine the elements of the offence.
- Where a ground of appeal was not properly raised at trial (here, no directed verdict application was made), the appellate court may decline to treat the omission as a ground for disturbing the conviction.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 195(b), 197(b), 346
- Crimes Act 1958 (Vic)
- Crimes (Criminal Destruction and Damage) Amendment Act 1987
- Evidence Act 1995 (NSW), s 165
- Criminal Appeal Rules 1952, r 4
Cases:
- Director of Public Prosecutions' Reference No 1 of 1988 (1989) 40 A Crim R 461
- Peters v The Queen (1998) 192 CLR 493
- Regina v Tripodina (1988) 35 A Crim R 183
- Wilde v The Queen (1988) 164 CLR 365