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Court of Criminal Appeal 18 October 2016

Hashemi v R

[2016] NSWCCA 229

Firearms & weapons
CRIMINAL LAW CONVICTION APPEAL DISCHARGE FIREARM AT DWELLING HOUSE CROWN CONCEDED ERROR

Citation: Hashemi v R [2016] NSWCCA 229
Court: NSW Court of Criminal Appeal
Date: 18 October 2016
Judges: Ward JA; Davies J; RS Hulme AJ

Background

The appellant had pleaded guilty before a magistrate to one count of discharging a firearm at a dwelling house, contrary to s 93GA(1) of the Crimes Act 1900 (NSW). He was subsequently sentenced in the District Court to 21 months imprisonment, suspended under s 12 of the Crimes (Sentencing and Procedure) Act 1999. Two additional matters were taken into account on a Form 1: possession of one round of ammunition and possession of four tablets of MDMA.

The agreed facts established that the appellant had driven several others to the premises where the shooting occurred. He did not fire the shots himself. The sentencing judge accepted that the plea was entered on the basis of joint criminal enterprise liability.

The appellant filed a notice of appeal in January 2016, more than two years after sentencing. His ground of appeal was that there was no evidence he held the requisite intent (known in law as mens rea) to support a conviction for the principal offence. The Crown conceded the appeal, acknowledging that the plea appeared to have been entered on the basis of incorrect legal advice.

  • Whether there was sufficient evidence of the requisite intent to sustain a conviction for discharging a firearm at a dwelling house under s 93GA(1)
  • Whether a guilty plea entered on the basis of incorrect legal advice, and not attributable to a genuine consciousness of guilt, constitutes a miscarriage of justice
  • What orders the Court of Criminal Appeal should make upon allowing the appeal, given that the statutory alternative verdict and substitution provisions did not apply

Decision

The Court accepted the Crown's concession that the conviction could not stand. The agreed facts indicated that the appellant's liability had been framed, at least in part, on the footing of accessory after the fact rather than as a principal or party to the shooting. The Crown had accepted at the sentencing hearing that the appellant lacked knowledge of the intended shooting before it occurred, and the transcript revealed that his legal representative had misunderstood the basis of liability. These circumstances pointed to a miscarriage of justice.

Although a guilty plea ordinarily constitutes an admission to the essential elements of an offence, the Crown acknowledged that this plea was not attributable to a genuine consciousness of guilt. On that basis, the Court was satisfied the Crown's concession was well-founded.

The appellant himself acknowledged before the Court that he should likely have been convicted of being an accessory after the fact under s 347 of the Crimes Act. However, that offence is not a statutory alternative to s 93GA(1), so the Court could not simply substitute a verdict. Section 7(2) of the Criminal Appeal Act 1912 also did not apply because the appellant had pleaded guilty rather than been convicted following a trial.

The Court rejected the Crown's preferred approach of continuing proceedings before the original magistrate under s 8A of the Criminal Appeal Act. Instead, the Court remitted the matter to the District Court for a hearing de novo (a completely fresh hearing) under s 12(2) of the Criminal Appeal Act, on the basis that the Court Attendance Notice would be withdrawn and the matter would proceed by way of an ex officio indictment for the charge of being an accessory after the fact.

Orders Made

  • The conviction for discharging a firearm at a dwelling house contrary to s 93GA(1) was quashed
  • The matter was remitted to the District Court for a hearing de novo, to proceed on the charge of being an accessory after the fact

Key Takeaways

  • A guilty plea does not inevitably bar a conviction appeal where the plea was entered on incorrect legal advice and cannot be attributed to a genuine consciousness of guilt; in such circumstances a miscarriage of justice may be established.
  • Under s 93GA(1) of the Crimes Act 1900, a conviction requires proof of the requisite intent; a person who was unaware that a shooting was about to occur cannot satisfy that mental element.
  • Being an accessory after the fact under s 347 of the Crimes Act 1900 is not a statutory alternative to the offence of discharging a firearm at a dwelling house, so the Court of Criminal Appeal could not substitute that verdict.
  • Section 7(2) of the Criminal Appeal Act 1912, which allows an alternative verdict, applies only to convictions following trial, not to guilty pleas.
  • Where remittal for a fresh hearing is appropriate and a more suitable charge has been identified, the Court of Criminal Appeal may exercise its power under s 12(2) of the Criminal Appeal Act 1912 to remit to the District Court for proceedings de novo rather than returning the matter to the original magistrate.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 93GA(1), 347
- Crimes (Sentencing and Procedure) Act 1999 (NSW), s 12
- Criminal Appeal Act 1912 (NSW), ss 7(2), 8A, 12(2)

Cases
- R v SL [2004] NSWCCA 397
- R v Wilkes [2001] NSWCCA 383
- Tweeddale v Regina [2012] NSWCCA 99