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Court of Criminal Appeal 10 December 2012

Ahmed v R

[2012] NSWCCA 260

Firearms & weaponsPublic order & justice offences
CRIMINAL LAW APPEAL AGAINST CONVICTION

Citation: Ahmed v R [2012] NSWCCA 260
Court: NSW Court of Criminal Appeal
Date: 10 December 2012
Judge(s): McClellan CJ at CL, Hidden J, Adamson J (all agreeing)

Background

The appellant was convicted by a jury in the District Court of two offences: firing a firearm in a public place (s 93G(1)(b) of the Crimes Act 1900) and unlawful possession of a firearm (s 7(1) of the Firearms Act 1996). The Crown's case was that he did not personally fire or possess the weapon, but that he aided and abetted his front-seat passenger, Mr Razzak, who discharged a Glock pistol from the moving hire car late one evening in Punchbowl.

Two police officers in an unmarked car nearby heard gunshots and observed a vehicle emerge from the street at speed. They pursued the car, activating sirens and lights, but it did not stop until it reached the appellant's own driveway. Three cartridge cases were found on the street in close proximity to one another, and two further cartridge cases were found inside the vehicle, pointing to shots having been fired from inside the car while it was stationary or moving very slowly.

The appellant did not give evidence at trial. His case was that he had no knowledge of the gun, was not involved in the shooting, and drove off in panic when the police pursued him.

  • Whether the jury's guilty verdicts were unreasonable or unsupported by the evidence, given the Crown case was wholly circumstantial
  • Whether the trial judge caused a miscarriage of justice by directing the jury that they were prohibited from returning different verdicts on the two counts
  • Whether the trial judge misdirected the jury on the facts relevant to the "accessory after the fact" element
  • Whether the trial judge was required to give a "consciousness of guilt" (or flight) direction, and failed to do so

Decision

Ground 1: Unreasonable verdict. Adamson J, applying the test in M v The Queen (1994) 181 CLR 487, conducted an independent assessment of the evidence and was satisfied the verdicts were open to the jury. Because the Crown case rested on undisputed primary facts rather than witness credibility, the jury held no inherent advantage over the appellate court in weighing the evidence. The clustering of cartridge cases demonstrated the vehicle must have been stationary or moving very slowly during the shooting, which necessarily required the driver's co-operation. The appellant's continued driving toward his own home, despite the police pursuit, was also capable of supporting an inference of prior intent to assist.

Ground 2: Direction prohibiting different verdicts. The trial judge told the jury it would be "perverse" to return different verdicts on the two counts, reasoning that possession and discharge of the firearm were inseparable. Adamson J held the remarks were better characterised as an observation or factual comment rather than a binding legal direction, and that a judge is permitted to comment strongly on factual issues without usurping the jury's function. No miscarriage of justice was established.

Ground 3: Misdirection on accessory after the fact. The Court found this ground was not made out on the facts as presented. The Crown case was built on aiding and abetting liability, and no relevant error in the directions on that topic was established.

Ground 4: Failure to give a consciousness of guilt (flight) direction. The Crown had not relied on the appellant's driving away as evidence of consciousness of guilt. Rather, it relied on the driving conduct as affirmative assistance during the commission of the offences. Adamson J held that giving a flight direction would have introduced unnecessary confusion and placed undue emphasis on a small part of the overall transaction. The absence of any request for such a direction at trial was, itself, a powerful indicator that no injustice was occurring.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that where a wholly circumstantial Crown case rests on undisputed primary facts, an appellate court need not defer to the jury's advantage in assessing witnesses and may conduct a genuinely independent review of the evidence.
  • A trial judge's strong factual comment that it would be "perverse" to return different verdicts on two intertwined counts was held to be an observation rather than a binding direction, and did not constitute a miscarriage of justice.
  • Sufficient evidence existed to support convictions for aiding and abetting both the possession and discharge of a firearm where the driver slowed or stopped the vehicle to facilitate the shooting and then continued to assist the shooter after the event.
  • A consciousness of guilt (flight) direction is generally not required where the Crown has not relied on a defendant's departure from the scene as evidence of guilt, but instead relies on the same conduct as direct participation in the offence.
  • No error was established by the trial judge's failure to give a flight direction in circumstances where neither defence counsel nor the Crown sought one, consistent with the principle in Dhanhoa v The Queen (2003) 217 CLR 1.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 93G(1)(b)
- Firearms Act 1996 (NSW), s 7(1)

Cases
- M v The Queen [1994] HCA 63; 181 CLR 487
- MFA v The Queen [2002] HCA 53; 213 CLR 606
- SKA v The Queen (2011) 243 CLR 400
- RPS v The Queen [2000] HCA 3; 199 CLR 620
- Chen v R [2010] NSWCCA 224
- Zoneff v The Queen [2000] HCA 28; 200 CLR 234
- Dhanhoa v The Queen [2003] HCA 40; 217 CLR 1
- FP v R [2012] NSWCCA 182