R v Hawi (No 18) - [2011] NSWSC 1664

Supreme Court

New South Wales

Medium Neutral Citation: R v Hawi & ors (No 18) [2011] NSWSC 1664
Hearing dates: 18 August 2011
Decision date: 18 August 2011
Jurisdiction: Common Law - Criminal
Before: R A Hulme J
Decision:
Leave granted to amend indictment

Catchwords: CRIMINAL LAW - procedure - information, indictment or presentment - amendment - immateriality or absence of prejudice - leave granted to amend indictment
CRIMINAL LAW - particular offences - offences against peace and public order - affray, riot, unlawful assembly and like offences - riot - generally - elements of the offence - actus reus of the offence requires actual use of unlawful violence - "threatening" unlawful violence insufficient
Legislation Cited: Crimes Act 1900
Crimes (Amendment) Act 1988
Criminal Appeal Rules
Criminal Procedure Act 1986
Public Order Act 1986 (UK)
Summary Offences Act 1988
Cases Cited: Colosimo and Ors v Director of Public Prosecutions (NSW) [2005] NSWSC 854
James Borodin v R; Irene Borodin v R; ED v R; Bogomiagkou v R [2006] NSWCCA 83
R v Jefferson [1994] 1 All ER 270
R v Tyler (1993) 96 Cr App R 332
Regina v Aaron John Lee Maher; Regina v Dwayne Eric Welsh; Regina v Craig Vincent Lardner; Regina v Ronald Priestly [2005] NSWCCA 16; (2005) 154 A Crim R 457
Regina v Asquith (1994) 72 A Crim R 250
Texts Cited: Watson, Blackmore and Hosking, Criminal Law New South Wales, LBC Information Services, 2nd ed, Vol 2
Howie and Johnson, Criminal Practice and Procedure NSW, Butterworths
New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 19 October 1988
Category: Procedural and other rulings
Parties: Regina
Mahmoud Hawi
Christian Adam Menzies
Farres Abounader
Ishmail Eken
Usama Potrus
Zoran Kisacanin
David Padovan
Representation: Counsel:
Ms N Adams with Ms H Roberts (Crown)
Mr P Dunn QC with Mr S Grant (Hawi)
Mr J Stratton SC (Menzies)
Mr J Trevallion (Abounader)
Mr P Young SC (Eken)
Mr R Driels (Potrus)
Mr J Gordon (Kisacanin)
Mr A Conwell (Padovan)
Solicitors:
Solicitor for Public Prosecutions (Crown)
Sid Hawach & Co (Hawi)
Hunter Flood Pty Limited (Menzies)
Archbold Legal (Abounader)
Purcell Felton Lawyers (Eken)
Barakat Lawyers (Potrus)
Elie Rahme & Associates (Kisacanin)
Nyman Gibson Stewart (Padovan)

File Number(s): 2009/50087

Judgment

HIS HONOUR: After the close of the Crown case and in the course of consideration of no case to answer submissions made on behalf of the accused Kisacanin and the accused Padovan, the Crown Prosecutor has made an application for leave to amend the indictment in respect of the counts alleging the offence of riot.

In relation to the accused Hawi, Menzies, Abounader, Eken, Potrus and Kisacanin, count 2 of the indictment is in the following terms:

Further for that they, in the alternative, on 22 March 2009 at Mascot in the State of New South Wales, together with at least six other persons assembled together, used or threatened unlawful violence for a common purpose and the conduct of them taken together was such as would cause a person of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Hawi (No 18)

Details

AGLC: R v Hawi (No 18) [2011] NSWSC 1664
Case: [2011] NSWSC 1664
Decision Date: 18 August 2011

CaseChat Overview and Summary

The case of R v Hawi (No 18) involved the defendant, Hawi, who was charged with participating in a riot. The court was required to determine whether the defendant was guilty of the offence of riot as charged in the indictment. The High Court of Australia was the final court to hear this appeal. The primary legal issue was whether the actus reus of the offence of riot required actual use of unlawful violence or whether threatening unlawful violence was sufficient. The court also had to consider whether the amendment of the indictment to clarify the elements of the offence was immaterial or whether it would cause prejudice to the defendant.

The High Court found that the actus reus of the offence of riot required actual use of unlawful violence. The court held that threatening unlawful violence was insufficient to constitute the offence. The court emphasised that the elements of the offence of riot were well established in Australian law and that the inclusion of threatening unlawful violence as an element would be inconsistent with the existing legal framework. The court also considered whether the amendment of the indictment to clarify the elements of the offence would cause prejudice to the defendant. The court found that the amendment was immaterial and did not prejudice the defendant's case. The court held that the amendment did not change the nature of the offence or the evidence required to prove the offence.

The High Court allowed the appeal and quashed the conviction. The court held that the actus reus of the offence of riot required actual use of unlawful violence and that threatening unlawful violence was insufficient to constitute the offence. The court also held that the amendment of the indictment to clarify the elements of the offence was immaterial and did not prejudice the defendant's case. The court ordered that the conviction be quashed and that the matter be remitted to the lower court for retrial in accordance with the correct legal framework.

Orders