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[2003] NSWCCA 396
procedural. Appeal dismissed as incompetent. The Court held that the trial judge’s statements were reasons rather than a judgment or order appealable under s 5F of the Criminal Appeal Act 1912.
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The Crown sought to appeal after the trial judge said the facts it proposed to prove might not amount to the charged firearm offence. The Court of Criminal Appeal did not decide whether firing from a car could satisfy the offence. It dismissed the appeal because the trial judge had not made a judgment or order that could be appealed under s 5F. The judge’s statements were reasons for the procedural course he proposed, and a possible acquittal had not yet been ordered. Hodgson JA added some non-binding comments about how the charge might be distinguished from the earlier decision in Hardman.
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The decision is reported as R v Kanaan; R v El-Assaad; R v Jamal [2003] NSWCCA 396. It was delivered by the New South Wales Court of Criminal Appeal on 16 December 2003. Hodgson JA gave the principal reasons, with Hulme J and Hidden J agreeing at [17]–[18].
The three respondents faced a proposed single-count indictment alleging that on 11 November 1998 at Redfern they fired a firearm “in or near a public place”, identified as Eveleigh Street. The charge was brought under s 93G(1)(b) of the Crimes Act 1900 (NSW), which made it an offence to fire a firearm or spear gun in or near a public place. The maximum penalty stated in the provision reproduced in the judgment was 10 years’ imprisonment [1].
The Crown’s brief opening indicated that it would allege that the accused drove down Eveleigh Street in a stolen car and discharged a firearm from that car [2]. Before the trial proceeded further, the judge raised Hardman v DPP (NSW) [2003] NSWCA 130. That decision had held, by majority, that possession of a loaded firearm inside a motor vehicle on a public road did not amount to possession of that firearm in a public place for the purpose of s 93G(1)(a) [3].
The trial judge considered that the proposed evidence might not disclose an offence. He stated that if possession inside a car was not possession in a public place, discharging a firearm from a car on a public street was not discharging it in a public place, and could not be described as discharging it near a public place when the car was itself in a public place [3]. He said he was minded to empanel a jury and order an acquittal, but adjourned the matter to give the Crown an opportunity to seek leave to appeal. He also certified the case under s 5F of the Criminal Appeal Act 1912 [3].
The Crown then appealed, identifying the challenged decision as the judge’s view that the proposed Crown case could not establish a prima facie case [4]. The central question for the Court of Criminal Appeal was not initially whether that view about s 93G was right. It was whether the judge had made an interlocutory judgment or order capable of being appealed under s 5F [6].
The Court held that he had not. The appeal was therefore dismissed as incompetent [10], [16], [19]. The Court did not decide whether the alleged conduct, if proved, would establish the firearm offence.
Section 5F provides for appeals against interlocutory judgments or orders in specified proceedings, including prosecutions on indictment in the District Court. The provision was set out in full at [5]. For the Crown’s appeal to be competent, there had to be an interlocutory judgment or order to appeal from.
Hodgson JA recognised that it is not always straightforward to distinguish a judgment or order from a ruling that is not itself appealable. He cited Lethlean v R and R v Bozatsis and R v Spanakakis for that point [7]. The relevant feature, as he drew from Gleeson CJ’s statement in Bozatsis and Spanakakis, was a “measure of finality” such that an appellate court would need to reverse the decision [7].
Applying that approach, Hodgson JA found no such decision here. The trial judge’s statements about the legal effect of the proposed Crown facts were, in substance, reasons. The judge had not yet directed an acquittal or otherwise finally determined the charge. Although the Crown argued that the relevant sentences were final rulings forming the basis of procedural orders, it did not challenge those procedural orders, including the adjournment [8]. The Court consequently treated the appeal as directed at reasons rather than an appealable order.
Hodgson JA also considered, briefly, whether the matter could be viewed as a determination to direct a verdict of acquittal. That possibility would have required the Crown to address R v Cheng [1999] 48 NSWLR 616 [9]. He noted that the circumstances differed from Cheng because the indication of a possible acquittal here occurred before the accused had faced a substantial trial following the close of the Crown case. But he also noted that Cheng appeared to rely on other grounds: that no judgment or order had actually been made, and that the contemplated direction of acquittal would be final rather than interlocutory [9]. The Court did not need to resolve that alternative analysis because it had already concluded that there was no judgment or order in the present case [10].
The appeal’s dismissal was thus a procedural holding about the statutory scope of s 5F. The judgment’s comments about the proper interpretation of s 93G did not supply the basis for the disposition.
The judgment describes the relevant background law rather than establishing a new substantive rule about the firearm offence. Before the appeal, Hardman had held that possession of a loaded firearm inside a motor vehicle on a public road did not amount to possession “in a public place” for s 93G(1)(a) [3]. The trial judge considered that reasoning decisive, by analogy, for firing a weapon from a vehicle in a public street [3].
Hodgson JA expressly declined to assess whether Hardman was correct. He noted that an application for special leave to appeal to the High Court was pending and said that his comments should proceed on the assumption that Hardman was correct [14]. He also recorded that the relevant statutory provisions had been amended, but that the amendment appeared not to be retrospective, so the case remained governed by the earlier law [14]. The judgment does not identify the amending provision or set out the amended text.
On the assumed basis that Hardman was correct, Hodgson JA considered that the decision did not necessarily resolve the present charge. The earlier case concerned possession under s 93G(1)(a); the present charge concerned firing under s 93G(1)(b). He characterised the latter as one offence expressed in the alternatives “in or near a public place”, and considered that a jury could find the offence proved without deciding which alternative applied [15].
He then identified two possible ways of analysing the alleged firing from a car. Firing through an open window might be distinguishable from possession of a weapon inside a vehicle, because the firearm might no longer be insulated from the public place in the same way [15]. If that distinction could not be made, Hodgson JA considered that discharging a firearm through the window of a car located in a public place might be discharging it “near” a public place [15]. These were expressly comments on the merits, not a ruling that the charge was legally available on the facts.
The decision therefore left the procedural requirement under s 5F clarified in this case, while leaving the substantive interaction between Hardman and s 93G(1)(b) unresolved. Its binding disposition was that the particular appeal could not proceed without an appealable judgment or order.
At [7], Hodgson JA stated that an appealable decision must have “a measure of finality” and require an appellate court’s decision to reverse it. In plain English, a judge’s explanation of a view, or a preliminary indication of what may happen later, is not necessarily an appealable order. The focus is on what the judge has actually decided, not only on how significant the judge’s comments might be.
At [8], Hodgson JA said that the contested sentences were “in substance reasons rather than being themselves judgments or orders”. This explains why the Crown could not appeal from the judge’s legal reasoning as though it were a completed ruling. The judge had adjourned the case and had not yet ordered an acquittal. The procedural orders were not the subject of the Crown’s challenge.
At [10], Hodgson JA concluded that “there was in this case no judgment or order” and that the appeal must be dismissed as incompetent. “Incompetent” here means that the appeal did not meet the threshold requirement for the statutory appeal route. It does not mean that the Court had decided the substantive firearm issue in the respondents’ favour.
At [12], Hodgson JA observed that this did not necessarily mean there was no possible remedy in this kind of situation. He referred to the possibility of declaratory or prerogative relief in the Supreme Court, while noting that intervention in criminal proceedings would be undesirable and might be considered in some circumstances involving a clear question of law and the risk of an inappropriate acquittal direction. This was an observation, not an order granting or directing any such relief.
At [15], Hodgson JA said the offence of firing a firearm “in or near” a public place was a single offence. His reasoning was that the Crown would not have to establish which of those two alternatives applied if the jury were satisfied beyond reasonable doubt that one did. He then gave tentative views on the application of “near” to a weapon fired through a car window. Those observations were not necessary to the result and did not determine the trial judge’s substantive concern.
The decision is relevant where a party seeks to appeal under s 5F from something said or ruled during an indictable criminal proceeding, and the appealability of that judicial act is disputed. The key inquiry identified in this judgment is whether there is an interlocutory judgment or order with a measure of finality, rather than reasons, a tentative view, or a step that anticipates a later decision [6]–[10].
The particular setting here involved a trial judge who considered whether the facts outlined by the Crown would constitute an offence, said he was minded to empanel a jury and order an acquittal, and adjourned the matter to allow the Crown to seek an appeal [3]. The decision shows that an expressed intention or anticipated ruling is not necessarily the same as an order already made. The analysis also depends on how the notice of appeal identifies the challenged decision and whether any actual procedural order is challenged [4], [8].
The firearm discussion may be relevant where a charge under s 93G(1)(b) concerns a weapon discharged from a vehicle in or near a public place. However, the judgment did not decide that factual scenario as a matter of substantive law. It gives only Hodgson JA’s provisional analysis, and expressly treats the issue as additional to the ground on which the appeal was dismissed [13]–[16]. It should not be read as a final determination that every discharge from a vehicle on a public road is, or is not, a discharge in or near a public place.
The judgment itself does not report how later courts treated R v Kanaan; R v El-Assaad; R v Jamal. No later decisions or subsequent appellate history are supplied in the text, so a claim about later treatment cannot be grounded in this judgment alone.
The judgment does identify the authorities on which its analysis drew. It cited Lethlean v R and R v Bozatsis and R v Spanakakis on the distinction between judgments or orders and rulings that lack the required finality [7]. It discussed R v Cheng in relation to the possible characterisation of a proposed acquittal direction as a final order rather than an interlocutory one [9]. It also considered Hardman as background to the trial judge’s concern and to Hodgson JA’s non-dispositive comments on the firearm charge [3], [14]–[15].
The Court did not overrule or disapprove those cases. Nor did it decide the merits of Hardman. It noted that special leave to appeal from Hardman was being sought and deliberately assumed its correctness for the purpose of Hodgson JA’s brief discussion [14]. Any account of later treatment would require additional legal sources beyond this judgment.
The central substantive question left open was whether, on the facts alleged, firing a firearm from a car on a public street amounted to firing it “in or near a public place” under the version of s 93G(1)(b) applicable to the alleged conduct. Hodgson JA offered possible lines of reasoning but did not decide the issue [15].
A related question was whether firing a weapon through an open car window could be distinguished from possession of a firearm inside a vehicle, the conduct considered in Hardman. Hodgson JA said such a distinction might be arguable because the weapon may no longer be insulated from the public place in the same way [15]. He did not determine what evidence would be needed to establish that distinction.
If Hardman could not be distinguished, a further question was whether the discharge could nonetheless be characterised as occurring “near” a public place because it came from a car situated in one [15]. The judge expressed no difficulty with that interpretation, but it remained an observation rather than the Court’s determination of the charge.
Procedurally, the judgment also left open how s 5F applies in a different case where a trial judge has actually made an order, rather than expressing a view or indicating a possible future direction. Its reasoning makes finality important, but it does not catalogue every kind of ruling that would meet the statutory threshold. The discussion of Cheng likewise did not resolve the appealability of an actual acquittal direction in all circumstances [9].
Finally, Hodgson JA mentioned possible Supreme Court declaratory or prerogative relief in some circumstances, but the Court did not grant relief or state a complete test for when such intervention would be appropriate [12]. The judgment should therefore be read narrowly: its disposition concerns the absence of an appealable interlocutory judgment or order in these proceedings, while its comments on the firearm offence and alternative remedies are not final rulings on those questions.
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CITATION : R v. Kanaan; R v. El-Assaad; R v. Jamal [2003] NSWCCA 396 HEARING DATE(S) : 16 December 2003 JUDGMENT DATE : 16 December 2003
JUDGMENT OF : Hodgson JA at 1; Hulme J at 17; Hidden J at 18 DECISION : Appeal dismissed.
CATCHWORDS : CRIMINAL LAW - Appeal - Opinion of trial judge that facts alleged by Crown do not constitute offence - Whether an interlocutory judgment or order - Firearm fired from car in public place - Whether discharged in or near a public place. LEGISLATION CITED : Crimes Act 1900 s.93G Criminal Appeal Act 1912 s.5F R v. Bozatsis and R v. Spanakakis (1997) 97 ACrimR 296 CASES CITED : Cheng, R v. (1999) 48 NSWLR 616 Hardman v. DPP (NSW) [2003] NSWCA 130 Lethlean v R. (1995) 83 ACrimR 197 Crown appeallant in each case PARTIES : Michael Kanaan - respondent (60442/03) Wassim El-Assad - respondent(60443/03) Saleh Jamal - respondent (60444/03 FILE NUMBER(S) : CCA 60442/03; 60443/03; 60444/03 Mr. A. Hudson for Crown/applicant COUNSEL : Mr. C. Simpson for Kanaan Mr. F. Santisi for El-Assaad Mr. C. Simpson for Jamal Mr. S. Cavanagh for applicant SOLICITORS : Mr. K. Kyriacou for Kanaan Mr. K. Lee for El-Assaad Unknown for Mr. Jamal
LOWER COURT District Court JURISDICTION : LOWER COURT 00/11/0979 FILE NUMBER(S) : LOWER COURT Shadbolt DCJ JUDICIAL OFFICER :
IN THE COURT OF CRIMINAL APPEAL CCA 60442/03 CCA 60443/03 CCA 60444/03 DC 00/11/0979
HODGSON JA HULME J HIDDEN J
Tuesday 16 December 2003 REGINA V. Michael KANAAN REGINA V. Wassim EL-ASSAAD REGINA V. Saleh JAMAL Judgment 1 HODGSON JA: On 20 October 2003 the three respondents appeared for trial before Shadbolt DCJ. The Crown passed up an indictment containing one count, namely, that on 11 November 1998 at Redfern in the State of New South Wales they fired a firearm in or near a public place, namely, Eveleigh Street, this being an offence under the Crimes Act 1900, s.93G(1)(b). It is convenient at this stage to set out s.93G(1) of the Crimes Act, which is in the following terms: 93G Causing danger with firearm or spear gun (1) Any person who: (a) possesses a loaded firearm or loaded spear gun: (i) in a public place, or (ii) in any other place so as to endanger the life of any other person, or (b) fires a firearm or spear gun in or near a public place, or (c) carries or fires a firearm or spear gun in a manner likely to injure, or endanger the safety of, himself or herself or any other person or any property, or with disregard for the safety of himself or herself or any other person, is liable to imprisonment for 10 years. 2 In the course of argument concerning some preliminary points, the Crown briefly opened the case, indicating that it would be alleged that the three accused drove down Eveleigh Street in a stolen car and discharged a firearm from that car. 3 On 22 October 2003, the trial judge drew to the attention of counsel the case of Hardman v DPP (NSW) [2003] NSWCA 130, in which the Court of Appeal decided by majority that possession of a loaded firearm in a motor vehicle on a public road does not constitute possession of that firearm in a public place for the purposes of s 93G(1) (a) of the Crimes Act. The trial judge was concerned that he should not embark on a lengthy trial, when the facts might not disclose an offence known to the law; and it appears that he took submissions from counsel on that question. On that day he delivered reasons for judgment in which he discussed the effect of Hardman, and he concluded as follows: If possession of a firearm in a car is not possession in a public place for the purpose of s93G(1)(a)(i) then discharging a firearm from a car on a public street is not discharging it in a public place under s93G(b). Nor can it be said that the firearm has been discharged near a public place when it has been discharged from a motor vehicle in a public street which is plainly in a public place.
Despite these reservations expressed above, this Court is bound by the decision in Hardman and must apply it. The facts which the Crown has indicated he intends to prove would not, having regard to this judgment, constitute an offence and I am mindful to empanel a jury and to order an acquittal.
In order to permit the Crown to seek leave to appeal to the Court of Criminal Appeal I will adjourn the case to be mentioned in three weeks time. I indicated to counsel that bail for Jamal will remain unaltered and the other two are serving sentences, I understand.
I certify this is a proper case for the Court of Criminal Appeal and thereby grant a certificate under s5F, but I have been informed by the Crown before delivering this judgment that Hardman's case itself is likely to be appealed as the Director of Public Prosecutions is seeking leave to appeal to the High Court. Nevertheless, confronted with the situation as I perceive it in the case before me, I will continue with the course I have determined. 4 The Director of Public Prosecutions has brought an appeal, purportedly under s.5F of the Criminal Appeal Act 1912 to the Court of Appeal against a judgment or order made by the trial judge, identified in the notice of appeal as follows: That, on the outline of the Crown case, there can be no prima facie case with respect to the offence charged on the proposed indictment. 5 Section 5F in the Criminal Appeal Act is in the following terms:
5F Appeal against interlocutory judgment or order (1) This section applies to: (a) proceedings (including committal proceedings) for the prosecution of offenders on indictment in the Supreme Court or in the District Court, and (b) proceedings under Division 5 of Part 2 of Chapter 3 of the Criminal Procedure Act 1986 , and (c) proceedings in Class 5 of the Land and Environment Court's jurisdiction (as referred to in section 21 of the Land and Environment Court Act 1979 ).
(2) The Attorney General or the Director of Public Prosecutions may appeal to the Court of Criminal Appeal against an interlocutory judgment or order given or made in proceedings to which this section applies.
(3) Any other party to proceedings to which this section applies may appeal to the Court of Criminal Appeal against an interlocutory judgment or order given or made in the proceedings: (a) if the Court of Criminal Appeal gives leave to appeal, or (b) if the judge or magistrate of the court of trial certifies that the judgment or order is a proper one for determination on appeal.
(4) An appeal under this section shall, unless the Court of Criminal Appeal gives leave to adduce fresh, additional or substituted evidence, be determined on the evidence (if any) given in the proceedings to which the appeal relates.
(5) The Court of Criminal Appeal may: (a) affirm or vacate the judgment or order appealed against, or (b) give or make an interlocutory judgment or order instead of the judgment or order appealed against.
(6) If leave to appeal under this section is refused by the Court of Criminal Appeal, the refusal does not preclude any other appeal following a conviction on the matter to which the refused application for leave to appeal related.
(7) A person may not appeal to the Court of Criminal Appeal under this section against an interlocutory judgment or order if the person has instituted an appeal against the interlocutory judgment or order to the Supreme Court under Part 5 of the Crimes (Local Courts Appeal and Review) Act 2001 . 6 One requirement for an appeal under s.5F is that there be an interlocutory judgment or order, and plainly there is a real question in this case whether there is such a judgment or order. 7 There is no bright line for discriminating between judgments or orders on the one hand, and rulings which do not constitute judgments or orders on the other: see Lethlean v R (1995) 83 ACrimR 197, R v. Bozatsis and R v. Spanakakis (1997) 97 ACrimR 296. At p.303 in the report of Bozatsis and Spanakakis, Gleeson CJ stated that, in order to constitute a judgment or order, even an interlocutory judgment or order, there must be a measure of finality so that it requires a decision of an appellate Court to reverse it. 8 In my opinion there is nothing of that nature here. The Crown has submitted that the first two sentences in the passage from the trial judge's reasons that I have quoted, were final rulings which were the basis of procedural orders which the trial judge made, including orders adjourning the proceedings. However, there is no challenge made to those procedural orders and, in my opinion, the sentences referred to are in substance reasons rather than being themselves judgments or orders. 9 I would add that, if what occurred were to be treated as a determination to direct a verdict of acquittal in certain circumstances, it would be necessary for the Crown to distinguish the case of R v Cheng (1999) 48 NSWLR 616. In so far as that case was decided on the basis of the principle against double jeopardy, it may be that that case could be distinguished, because the indication that a direction of acquittal would be made occurred in that case after the end of the Crown case when the accused had already faced a substantial trial before a jury. That is not the situation here. However, it appears that another basis on which Cheng was decided was that there was no judgment or order actually made, and also that the judgment or order under contemplation, that is the direction of a verdict of acquittal, would amount to a final order, not an interlocutory order. 10 In any event, as I have said, in my opinion there was in this case no judgment or order; and for that reason it seems to me that the appeal must be dismissed as incompetent. 11 I would add two things. 12 I do not think this means there is no possibility of a remedy in this sort of situation. Although it is undesirable that the Supreme Court intervene in criminal proceedings by way of declaratory relief or prerogative relief, that is a possibility that is open and, in some circumstances, the Court may be prepared to intervene if there is a clear question of law which, without the Court's intervention, might result in an inappropriate direction of acquittal. 13 The other matter I would mention concerns the merits of the question that has been raised. In my opinion, since the matter has been debated, it is not inappropriate for this Court to express a view on the matter. 14 The Crown has informed us that there has been an amendment to the relevant provisions of the Crimes Act; but it appears that the amendment is not retrospective, so this case will continue to be governed by the previous law. The case of Hardman, as I understand it, is the subject of an application for special leave to appeal to the High Court. I do not think it would be appropriate, in making these passing comments to express any view as to the correctness of that decision. Any comments that this Court makes should be on the basis that Hardman is correct. 15 However, it seems to me that that decision does not govern this case. The offence charged in this case, of discharging a firearm in or near a public place is, in my opinion, a single offence, so that there is no duplicity in the Crown bringing a charge in those terms; and the charge would be proved if the jury is satisfied beyond reasonable doubt that a firearm was discharged, either in or near a public place, without the necessity of determining which of the two it was. If a firearm is discharged through the open window of a car, it may be arguable that it is no longer insulated from a public place in the way that supported the decision in Hardman, that the possession of a loaded firearm inside a motor vehicle on a public road did not constitute possession of a firearm in a public place. However, if Hardman is not distinguishable on that basis, then it seems to me that the discharge of a firearm through the window of a car, which is itself in a public place, must be considered a discharge of a firearm near a public place; and I do not see any difficulty with that conclusion arising from the fact that the car itself is in a public place. 16 However, for the reasons I have indicated, in my opinion, the appeal should be dismissed as incompetent. 17 HULME J: I agree with the order proposed and the reasons of the presiding judge. 18 HIDDEN J: I also agree. 19 HODGSON JA: The appeal is dismissed. **********
Last Modified: 12/23/2003 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Lethlean
R.
(1999) 48 NSWLR 616
Appeal dismissed as incompetent. The Court held that the trial judge’s statements were reasons rather than a judgment or order appealable under s 5F of the Criminal Appeal Act 1912.