Citation: R v El-Zeyat [2002] NSWCCA 138
Court: Court of Criminal Appeal (NSW)
Date: 3 May 2002
Judge(s): Wood CJ at CL; Sully J; Dowd J
Background
The appellant was charged under s 315(1) of the Crimes Act 1900 with tampering with and assisting in the disposal of a motor vehicle, with intent to hinder the discovery of evidence concerning a serious indictable offence. The charge arose from events on 17 July 1998, following a fatal shooting outside the Five Dock Hotel in which two men were killed and a third was injured. The vehicle used by those responsible was traced to a residential address in Punchbowl.
Crown witness Alan Rossini (a pseudonym) gave evidence that the appellant was among a group who degreased the vehicle at the Punchbowl address to remove fingerprints and saliva, and that the appellant then followed the vehicle to Roselands where it was abandoned. The appellant denied being present at any point.
The appellant was convicted by a jury in the Sydney District Court on 5 October 2001 and sentenced to 12 months' imprisonment with a non-parole period of six months. He appealed against conviction only.
Legal Issues
- Whether the offence under s 315(1) of the Crimes Act 1900 requires the accused to have specific knowledge of the particular serious indictable offence to which the evidence relates, or whether general knowledge that some serious indictable offence has been committed is sufficient.
- Whether, on the evidence at trial, the Crown had established the requisite mental element for the offence.
- Whether the verdict of guilty should be set aside as unreasonable or unsupported by the evidence.
Decision
The central question on appeal was one of statutory interpretation: what state of mind must a person have to be convicted under s 315(1). Wood CJ at CL, writing the leading judgment, concluded that the provision does not require the accused to have known the precise nature or details of the serious indictable offence concerned. It is sufficient that the accused knew, at the time of the relevant act, that a serious indictable offence of some kind had been committed and acted with intent to hinder the discovery of evidence relating to it.
However, the Court identified a problem with the way the trial proceeded. The jury was not properly directed on what knowledge was required. The charge as framed referred to a serious indictable offence "committed by a person or persons unknown," and the directions given to the jury did not adequately address whether the appellant had, at the relevant time, the necessary knowledge that a serious indictable offence had occurred. This was a material misdirection.
Wood CJ at CL found that the evidence did not establish, beyond reasonable doubt, that the appellant knew a serious indictable offence had been committed. The evidence was that those present spoke of the car "coming up on the scanner" and the need to remove fingerprints, but there was no evidence that the appellant was told of, or otherwise knew about, the shootings. On that basis, his Honour held the conviction could not stand.
Sully J reached a different conclusion on the unreasonable verdict ground, finding it difficult to be sufficiently confident that the jury's assessment of Rossini's credibility was wrong. However, Sully J agreed with the outcome. Dowd J agreed with Wood CJ at CL on both the reasons and the proposed orders.
Orders Made
- Appeal allowed.
- Conviction and sentence quashed.
- Verdict of acquittal entered.
Key Takeaways
- Under s 315(1) of the Crimes Act 1900, a conviction for hindering the discovery of evidence does not require proof that the accused knew the specific details of the serious indictable offence involved. General knowledge that a serious indictable offence of some kind had been committed is sufficient.
- The mental element is nonetheless essential: the prosecution must establish that the accused had, at the time of the relevant acts, at least that general awareness that a serious indictable offence had occurred.
- A failure to direct the jury adequately on the knowledge requirement constituted a material misdirection, sufficient to warrant the quashing of the conviction.
- Where the evidence at trial does not establish beyond reasonable doubt that the accused possessed the requisite knowledge, a verdict of acquittal is the appropriate result rather than a retrial.
- The Court of Criminal Appeal will enter a verdict of acquittal where the deficiency is in the evidence itself, not merely in the jury directions, and the evidence could not support a conviction even with correct directions.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 315(1)
- Interpretation Act 1987 (NSW)
Cases:
- Bahri Kural v The Queen (1987) 162 CLR 502
- Beckwith v The Queen (1976) 135 CLR 569
- He Kaw Te v The Queen (1985) 157 CLR 523
- Kingswell v The Queen (1985) 159 CLR 264
- M v The Queen (1994) 181 CLR 487
- Murphy v Farmer (1988) 165 CLR 19
- R v Bright [1916] 2 KB 441
- Regina v CWW (1933) 32 NSWLR 348
- R v Stone (1981) VR 739
- R v Tevendale (1955) VLR 95