Citation: R v Kanaan; R v El-Assaad; R v Jamal [2003] NSWCCA 396
Court: Court of Criminal Appeal, New South Wales
Date: 16 December 2003
Judge(s): Hodgson JA; Hulme J; Hidden J
Background
Three respondents were charged with a single count under s 93G(1)(b) of the Crimes Act 1900 (NSW): discharging a firearm in or near a public place. The Crown alleged that on 11 November 1998 they drove a stolen car down Eveleigh Street, Redfern, and fired a firearm from that vehicle.
When the matter came before Shadbolt DCJ in the District Court, the trial judge drew counsel's attention to a recent Court of Appeal decision, Hardman v DPP (NSW) [2003] NSWCA 130. That decision held, by majority, that possessing a loaded firearm inside a motor vehicle on a public road does not constitute possession of the firearm "in a public place" for the purposes of s 93G(1)(a). The trial judge concluded he was bound by Hardman and that, on the same reasoning, discharging a firearm from a car on a public street would not constitute an offence under s 93G(1)(b).
The trial judge certified the matter as appropriate for appeal and adjourned proceedings to allow the Director of Public Prosecutions to seek leave to appeal. The DPP brought an appeal to the Court of Criminal Appeal under s 5F of the Criminal Appeal Act 1912, which permits appeals against interlocutory judgments or orders.
Legal Issues
- Whether the trial judge's ruling that the Crown's alleged facts did not disclose a known offence constituted an "interlocutory judgment or order" capable of founding an appeal under s 5F of the Criminal Appeal Act 1912.
- Whether discharging a firearm from a motor vehicle travelling on a public road amounts to discharging it "in or near a public place" under s 93G(1)(b) of the Crimes Act 1900, given the Hardman decision.
Decision
On the jurisdictional question (s 5F)
The Court dismissed the appeal as incompetent because the trial judge's ruling did not constitute an "interlocutory judgment or order" within the meaning of s 5F. To qualify as such, a ruling must possess a measure of finality, in the sense that it would require a decision of an appellate court to reverse it. The trial judge's statements about the effect of Hardman on the Crown case were, in substance, reasons for a course of action he proposed to take, not a binding determination or procedural order that itself had that quality of finality.
The Court noted that, even if the ruling could be characterised as a determination to direct a verdict of acquittal in certain circumstances, the Crown would have faced additional difficulty distinguishing the decision in R v Cheng (1999) 48 NSWLR 616, which raised principles relating to double jeopardy. The Court observed that other avenues, such as declaratory or prerogative relief, may remain available in appropriate cases where a clear question of law risks producing an erroneous direction to acquit.
Obiter observations on the substantive question
Although the appeal was dismissed as incompetent, Hodgson JA (with whom the others agreed on the order) offered observations on the merits given the matter had been fully argued. He noted that the relevant amendment to the Crimes Act was not retrospective, so Hardman would continue to govern the proceedings. He declined to express a view on whether Hardman was correctly decided, given a special leave application to the High Court was pending.
Hodgson JA expressed the opinion, however, that Hardman did not necessarily govern the charge under s 93G(1)(b). He reasoned that the offence of discharging a firearm "in or near" a public place is a single offence proven if the jury is satisfied the discharge occurred in either location. Firing through an open car window may take the act outside the "insulation" that a closed vehicle was found to provide in Hardman. Further, even if Hardman were not distinguishable on that basis, the discharge of a firearm from a car that is itself in a public place could constitute discharge "near" a public place, and nothing in Hardman prevented that conclusion.
Orders Made
- The appeal was dismissed.
Key Takeaways
- A trial judge's expression of opinion that the Crown's facts do not disclose a known offence, coupled only with an adjournment, does not necessarily constitute an "interlocutory judgment or order" for the purposes of s 5F of the Criminal Appeal Act 1912. Some measure of finality is required before the appellate jurisdiction is enlivened.
- The Court of Criminal Appeal confirmed there is no bright line between a ruling that qualifies as a judgment or order and one that does not, consistent with the approach in Lethlean v R and R v Bozatsis and R v Spanakakis.
- Where an appropriate interlocutory ruling is not amenable to appeal under s 5F, proceedings by way of declaratory or prerogative relief may remain an available avenue in some circumstances.
- In obiter, Hodgson JA distinguished the Hardman decision from the s 93G(1)(b) charge: the majority's reasoning that a firearm inside a car is not "in a public place" does not automatically apply to the act of discharging the firearm, which may occur "near" a public place even if the shooter is inside a vehicle that is itself on a public road.
- Under s 93G(1)(b), "in or near a public place" describes a single offence, and the Crown does not need to prove which of the two alternatives applies, so long as the jury is satisfied beyond reasonable doubt that one of them is established.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 93G
- Criminal Appeal Act 1912 (NSW), s 5F
Cases
- Hardman v DPP (NSW) [2003] NSWCA 130
- R v Cheng (1999) 48 NSWLR 616
- R v Bozatsis; R v Spanakakis (1997) 97 ACrimR 296
- Lethlean v R (1995) 83 ACrimR 197