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6
Court of Criminal Appeal 8 June 2012

JAMAL v R

[2012] NSWCCA 198

Also reported as (2012) 223 A Crim R 585
Firearms & weaponsPublic order & justice offences
CRIMINAL LAW APPEAL AGAINST CONVICTION CONVICTION OF FIRST COUNT VERDICT UNREASONABLE FUNDAMENTAL FLAW IN TRIAL PROCESS

Citation: JAMAL v R [2012] NSWCCA 198
Court: NSW Court of Criminal Appeal
Date: 8 June 2012
Judges: McClellan CJ at CL, Hidden J, Rothman J

Background

The appellant was one of seven men alleged to have participated in a drive-by shooting at Lakemba Police Station in the early hours of 1 November 1998. At least sixteen shots were fired from a slowly moving car, with thirteen bullet holes found in the station's plate-glass doors. Five police officers were inside at the time; none was injured.

The Crown did not allege that the appellant was among the gunmen in the car. Rather, he was said to have been parked nearby with a police scanner, acting as a lookout and getaway driver as part of a joint criminal enterprise. Two co-accused later became Crown witnesses under grants of indemnity.

Following a complicated procedural history, including an incomplete 2004 trial after which the appellant absconded to Lebanon and was subsequently extradited, he was tried alone in November 2009. The jury convicted him on the first count: maliciously discharging a firearm with intent to cause grievous bodily harm (s 33A of the Crimes Act 1900). He appealed against that conviction.

  • Whether the conviction on the first count was unreasonable, specifically whether the evidence established that the joint criminal enterprise included an intent to cause grievous bodily harm
  • Whether a view of the crime scene conducted in the accused's absence, against his expressed wish to attend, constituted a fundamental flaw in the trial process
  • Whether evidence of the appellant's flight from Australia (absconding to Lebanon mid-trial) was properly admitted as consciousness of guilt

Decision

Unreasonable verdict

The central question on this ground was not whether the appellant participated in a joint enterprise, but whether that enterprise included an intent to cause grievous bodily harm. Hidden J reviewed the evidence of the two Crown witnesses about pre-incident planning. That evidence described discussions of a "drive-by shooting" at the police station in response to perceived police harassment of Lebanese men in Lakemba, but did not clearly establish that causing grievous bodily harm to any person was part of the planned enterprise. The Court found that, while an intent to harm could be inferred from the gunmen's own conduct, that intent could not be attributed to the appellant through the joint enterprise on the evidence before the jury. The conviction on the first count was therefore unreasonable.

Rothman J agreed, noting that the argument did not depend on credibility but on the existence of a hypothesis inconsistent with guilt for the offence as charged.

View of scene in accused's absence

Although the Court did not need to decide this ground given its conclusion on the unreasonable verdict, Hidden J examined it in detail. During the trial, the judge conducted a view of the area near Lakemba Police Station. The appellant wished to attend but was not brought to the view. Hidden J concluded this was a fundamental flaw in the trial process. An accused person has a right to be present at all stages of his trial, and a view forms part of the trial. The absence of the appellant, over his objection, was a serious irregularity that would independently have warranted quashing the conviction.

Flight evidence

The trial judge had admitted evidence that the appellant absconded mid-trial and fled to Lebanon, treating his flight as evidence of consciousness of guilt. Hidden J acknowledged the general admissibility of flight evidence but found that its probative value in this case was limited and was outweighed by the risk of unfair prejudice. The appellant had been on bail without incident between 2001 and 2004. His departure was at least as consistent with a fear of wrongful conviction as with actual guilt. Critically, to respond to the flight evidence the appellant would have had to give evidence and reveal that he was suspected of involvement in terrorist activity. This created a real risk of significant prejudice. The Court held the evidence should not have been admitted, while noting that admissibility at any retrial would be a matter for the trial judge on the evidence then presented.

Orders Made

  • Conviction and sentence on the first count (maliciously discharging a firearm with intent to cause grievous bodily harm) quashed
  • Verdict and judgment of acquittal entered on the first count
  • New trial ordered on the second count (firing a firearm in or near a public place, s 93G(1)(b) of the Crimes Act 1900)

Key Takeaways

  • A conviction based on joint criminal enterprise requires evidence that the specific intent forming the element of the offence was actually part of the agreed enterprise; it is not sufficient that a co-participant's conduct would have supported that inference independently.
  • An accused person's right to be present at all stages of trial extends to a view of the crime scene. Conducting a view in the accused's absence, over his objection, constitutes a fundamental flaw in the trial process capable of independently quashing a conviction.
  • Flight evidence admitted as consciousness of guilt must clear an admissibility threshold under the Evidence Act 1995: its probative value must not be outweighed by the risk of unfair prejudice. Where the circumstances of flight are equivocal, and where responding to the evidence would expose the accused to serious collateral prejudice, that balance may favour exclusion.
  • The Court of Criminal Appeal declined to substitute a verdict on the lesser alternative count, ordering a new trial on that count instead, consistent with the approach that substitution is not appropriate where the jury has not evaluated the alternative charge in its own right.
  • Acquittal of co-accused at an earlier trial does not prevent a later separate trial of the remaining accused, and such proceedings may result in conviction; however, the standard for a reasonable verdict remains rigorous and appellate courts will examine whether all elements, including those attributable through joint enterprise, were properly established.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 33A, 93G(1)(b)
- Criminal Appeal Act 1912 (NSW)
- Evidence Act 1995 (NSW)

Cases
- Cesan v The Queen [2008] HCA 52, 236 CLR 358
- Katsuno v The Queen (1999) 199 CLR 40
- Maher v The Queen (1987) 163 CLR 221
- Johns (Roger) v The Queen (1979) 141 CLR 409
- Eastman v R (1997) 158 ALR 107
- R v McHardie & Danielson [1983] 2 NSWLR 733
- R v Hallocoglu (1992) 29 NSWLR 67
- R v Cook [2004] NSWCCA 52
- R v Vernell [1953] VLR 590
- Lawrence v The King [1933] AC 699
- Chotiputhsilpa v Waterhouse & Ors [2005] NSWCA 295
- Environment Protection Authority v Unomedical Pty Ltd (No 2) [2009] NSWLEC 111
- R v Milat (Hunt CJ at CL, unreported, 12 April 1996)