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Local Court 20 August 2015

Director of Public Prosecutions (Cth) v El Ali (No 2)

[2015] NSWLC 17

Firearms & weapons
COMMITTAL PROCEEDINGS FIREARMS OFFENCES

Citation: Director of Public Prosecutions (Cth) v El Ali (No 2) [2015] NSWLC 17
Court: NSW Local Court
Date: 20 August 2015
Judge: Magistrate J Favretto

Background

The accused faced a Commonwealth conspiracy charge of importing Tier Two goods (approximately 140 Glock pistols imported in parts from Germany and the USA) and a number of related NSW State firearms offences. Two co-accused had already moved to the District Court awaiting sentence. The accused had pleaded guilty to the Commonwealth importation offence at the close of the prosecution's case.

The State charges included conspiracy to possess more than three unregistered firearms (including prohibited pistols), unlawfully selling firearms on three or more occasions within a 12-month period, and participating in a criminal group whose activity involved unauthorised possession of firearms. The firearms were imported in disassembled parts through a post office and adjacent business address, with only eight of the 140 pistols ever recovered.

A prior dispute about whether the Commonwealth Director of Public Prosecutions (CDPP) had power to conduct the State committal proceedings on behalf of the NSW Director of Public Prosecutions had been resolved in favour of the CDPP, both by this Court in No. 1 [2014] NSWLC 28 and upheld on appeal by Bellew J. With the stay of proceedings lifted, the Court turned to the accused's remaining challenges to the court attendance notices (CANs).

  • Whether the CANs were "embarrassing" and should be quashed, particularly Sequence 2 which alleged conspiracy with "one or more" of named persons or a "divers other person"
  • Whether the prosecution had discharged the evidential burden of proving the absence of a licence or permit to possess the firearms
  • Whether firearms could be said to have been "sold" where they had already been forfeited to the Crown under s 229(ba) of the Customs Act 1901 (Cth)
  • Whether complete firearms (as opposed to parts) could be proven to have been sold, given only parts had been imported
  • Whether sufficient evidence existed to commit the accused for trial on all State charges under ss 62 and 64 of the Criminal Procedure Act 1986

Decision

The Court rejected the submission that Sequence 2 was impermissibly embarrassing. Applying the civil pleading principle that a document is embarrassing where it creates real difficulties for the opposing party in responding, the Court found the CAN was sufficiently clear. A conspiracy can lawfully be alleged against one or more persons, and the alternative formulation did not render the charge incomprehensible.

On the evidential burden concerning lawful authority, the Court applied established principles that where a defendant's authorisation (such as a licence or permit) would be peculiarly within their own knowledge, the evidential burden shifts to the defendant to raise that matter. The prosecution's evidence, taken at its highest, was sufficient to establish the absence of any relevant licence or permit. The accused had not called any evidence to the contrary.

The Court declined to accept that forfeiture of the firearms to the Crown under s 229(ba) of the Customs Act prevented those firearms from being "sold" for the purposes of ss 51 and 51D of the Firearms Act 1996. To construe those provisions as applying only to valid contractual sales, where title lawfully passes, would render them inoperative in any case involving unlawfully imported firearms. The unlawful nature of the sale does not remove it from the reach of the offence provisions.

On the assembled firearms question, the Court applied the deeming provisions in ss 4 and 4C of the Firearms Act, under which items that would be a firearm but for something missing are taken to be a firearm. Evidence that only eight recovered firearms contained imported parts, combined with the volume of unrecovered parts, was sufficient to allow a jury to draw a reasonable inference that at least three complete firearms had been assembled and sold. The Court was satisfied that the prosecution evidence met the committal test under ss 62 and 64, and the accused was committed for trial.

Orders Made

  • The accused Khoder El Ali was committed for trial on all State charges.

Key Takeaways

  • A court attendance notice alleging conspiracy with "one or more" named or unnamed persons is not automatically embarrassing or liable to be quashed; the test is whether it creates real and practical difficulty for the accused in answering the charge.
  • Where the existence of a licence or permit to possess a firearm would be peculiarly within a defendant's own knowledge, the evidential burden of raising that authorisation rests with the defendant, not the prosecution.
  • Under ss 51 and 51D of the Firearms Act 1996, a "sale" of unlawfully imported firearms does not require a valid contract in which title passes; construing those provisions to apply only to lawful sales would render them without operation in the very circumstances they were designed to address.
  • The deeming provisions in ss 4 and 4C of the Firearms Act mean that firearm parts that, if assembled, would constitute a firearm are taken to be a firearm, allowing an inference of completed firearms even where only parts were imported and few were physically recovered.
  • At the committal stage, the test under s 62 of the Criminal Procedure Act 1986 requires only that prosecution evidence, taken at its highest and if believed, is capable of satisfying a properly instructed jury beyond reasonable doubt; weak or tenuous evidence can still satisfy that threshold.

Legislation and Cases Referenced

Legislation:
- Firearms Act 1996 (NSW), ss 3, 4, 4C, 7, 7A, 8, 36, 50D, 51, 51B, 51BB, 51D, 87
- Criminal Procedure Act 1986 (NSW), ss 61, 62, 63, 64, 316
- Crimes Act 1900 (NSW), ss 93T, 417, 417A
- Customs Act 1901 (Cth), s 229(ba)
- Crimes (Appeal and Review) Act 2001 (NSW), s 53
- Interpretation Act 1987 (NSW), s 33
- Firearms and Criminal Groups Legislation Amendment Act 2013 (NSW)

Key Cases:
- Commonwealth Director of Public Prosecutions on behalf of the New South Wales Director of Public Prosecutions v El Ali (No. 1) [2014] NSWLC 28
- El Ali v Commonwealth Director of Public Prosecutions [2015] NSWSC 671
- El Ali v Commonwealth Director of Public Prosecutions and the Local Court of NSW (No 2) [2015] NSWSC 1134
- Director of Public Prosecutions v Belani; Jumah; and Ammoun [2005] NSWSC 1013; 64 NSWLR 319
- Director of Public Prosecutions (NSW) v Morgan [2013] NSWSC 1474
- Director of Public Prosecutions v Elskaf [2012] NSWSC 21
- R v Serratore [1999] 48 NSWLR 101
- ADI Limited v Environment Protection Authority [2000] NSWCCA 333
- Chugg v Pacific Dunlop [1990] HCA 41; 170 CLR 249
- Vines v Djordjevitch (1955) 91 CLR 512
- Dowling v Bowie [1952] HCA 63; 86 CLR 136
- Lynch v Attwood [1983] 3 NSWLR 1
- Northam v Favelle Favco Holdings Pty Ltd (unreported, Supreme Court of NSW, Bryson J, 7 March 1995)