R v Hawi (No 25)

[2011] NSWSC 1671

Supreme Court

New South Wales

Medium Neutral Citation:	R v Hawi & ors (No 25) [2011] NSWSC 1671
Hearing dates:	29 August 2011
Decision date:	30 August 2011
Jurisdiction:	Common Law - Criminal
Before:	R A Hulme J
Decision:	For murder on an extended joint criminal enterprise basis, it is unnecessary for the Crown to establish contemplation that the possible infliction of grievous bodily harm would be achieved with a weapon
Catchwords:	CRIMINAL LAW - general matters - ancillary liability - complicity - extended joint criminal enterprise - murder - agreement to assault rivals - weapon used by principal to kill - whether contemplation that a participant might use a weapon is an necessary element of the offence when agreement is to assault
Cases Cited:	Clayton v The Queen [2006] HCA 58; (2006) 81 ALJR 439 McAuliffe v The Queen [1995] HCA 37; (1995) 183 CLR 108 Osland v The Queen [1998] HCA 75; (1998) 197 CLR 316 R v Nguyen [2010] HCA 38; (2010) 85 ALJR 8 R v Tangye (1997) 92 A Crim R 545 R v Sharah (1992) 30 NSWLR 292 Regina v Suteski [2002] NSWCCA 509; (2002) 56 NSWLR 182 R v Keenan [2009] HCA 1; (2009) 236 CLR 397 Varley v R (1976) 12 ALR 347
Category:	Procedural and other rulings
Parties:	Regina Mahmoud Hawi Christian Adam Menzies Farres Abounader Ishmail Eken Usama Potrus Zoran Kisacanin
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) 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)
File Number(s):	2009/50087

Judgment

1. HIS HONOUR: The Crown has proposed putting its case on murder in respect of the six Comanchero accused on two bases, in the alternative. The first basis involves a contention that there was a joint criminal enterprise, the object of which was to inflict grievous bodily harm upon one or more Hells Angels who were at the airport on the day in question. The second basis involves a contention that there was an extended joint criminal enterprise, that is, there was an agreement to assault one or more Hells Angels, and that the accused contemplated the possibility that in the course of committing such assault(s), one of their number would intentionally inflict grievous bodily harm. The reference to "Hells Angels" should be understood as a reference to all of the men in the Hells Angels group. That is, it includes the deceased who was not a member.

1. The Crown Prosecutor outlined these matters in her opening address to the jury on 25 May 2011 (T79 - 81). She concluded with the following encapsulation:

So there are two ways that the Crown says each of the accused could be all guilty or each guilty of murder on the basis that he agreed to commit a crime and that Anthony Zervas died as a result. So either if you were satisfied the accused agreed to inflict really serious physical injury, and that is what happened, or you were satisfied that each accused agreed to some lesser assault but contemplated the possibility that grievous bodily harm might intentionally have been inflicted, then the Crown could establish its case. (T80.48 - 81.4)

1. The evidence of Dr Johan Duflou, forensic pathologist, as to the cause of the death of the deceased was that it was the result of "[c]ombined effects of blunt force head injury and stab wounds to the chest and abdomen" (T3043.49). There is no dispute about this. The evidence in the Crown case is that the deceased was pursued, brought to the ground and then beaten, including with the use of a bollard. He was also stabbed with a knife, or a pair of scissors, or both.

1. The trial has reached the stage when the evidence has been completed and closing addresses are about to commence. Mr Stratton SC, who appears for the accused Menzies, has made a submission that it is necessary for the Crown to prove that the accused were aware "that at least one of his co-accused was armed with a weapon (relevantly a knife, a pair of scissors, or a bollard), which might be used with an intention to inflict grievous bodily harm or to kill" (written submissions at [2]). Various authorities were cited, principally R v Sharah (1992) 30 NSWLR 292.

1. The issue was the subject of oral submissions yesterday. At the conclusion, I indicated a tentative view that it was not necessary for the Crown to prove the contemplation of an accused that another participant in the joint criminal enterprise would, or possibly would, use a weapon (T4098.1). Overnight I have further considered the matter and have looked again at the authorities to which I was referred. This has confirmed the aforementioned tentative view.

1. At the present stage of proceedings, with closing addresses about to commence, and quite a number of legal issues requiring consideration in terms of my summing up, it is simply not possible to deliver a formal judgment that addresses all of the authorities and arguments that were presented to me in the course of submissions. Delivery of such a judgment would not, in any event, serve to fulfil any presently useful purpose. The parties need to know the bases upon which the Crown case will go to the jury on the charge of murder. If the reasoning behind it may later be called into question, that will require an even more considered and thorough survey of the issues, authorities and principles than I could hope to achieve in any judgment I could deliver in the present circumstances.

1. I do, however, indicate that the view I have arrived at has been based principally upon two considerations. The first is that what was said by Carruthers J in R v Sharah , upon which much reliance has been placed, cannot be regarded as anywhere near approaching statements of principle of general application in cases involving the concept of extended joint criminal enterprise. The idea that an accused must contemplate the possible, or actual, use of a weapon as being always essential where the contemplated possible incident of a joint criminal enterprise was achieved by such means is not established by R v Sharah , or by any other case to which I was referred.

1. Much confusion was introduced into the submissions by recourse to cases which involved robberies, where there were questions as to the need for the accused to be aware of the certainty, or possibility, that a co-offender was armed. There are many reasons why such cases should, in applying them to a case such as the present, be read with some circumspection before deriving statements of principle.

1. Mr Stratton sought to characterise the present case as being the equivalent of a "robbery gone wrong" homicide case (T4078.36; T4087.38), similar to R v Sharah and many of the cases in which reference has been made to it. As I understand it, the basis for this characterisation was that unlike in R v Suteski [2002] NSWCCA 509; (2002) 56 NSWLR 182, in those cases, and here, the Crown was "unable to establish contemplation of the possibility of an act by a co-accused with an intention to inflict grievous bodily harm unless the Crown can satisfy the jury that the accused was aware of the presence or use of weapons" (T4078.40; see also T4085).

1. The flaw in that analysis is that the evidence in the present case is, in my view, capable of establishing that an accused contemplated the possibility of the intentional infliction of grievous bodily harm even absent any foresight that a weapon might be used. The Crown case is that there were 12 men in the Comanchero group, a significant number of whom were large and powerfully built, who embarked upon a fight when they came across 5 men in the Hells Angels group, one of whom (the deceased) was short and slightly built. The prospect of grievous bodily harm being inflicted by any means is capable of being regarded by the jury as a very real one.

1. There was also exposed, with respect, a level of illogicality in the point sought to be made. Mr Stratton submitted that it was necessary for the accused to be aware of a co-accused being armed with a weapon. Without such awareness, so it was submitted, it could not be established that the accused was guilty, even when the possibility of the infliction of grievous bodily harm in the course of the enterprise was in fact achieved. However, it did not matter what type of weapon it was contemplated might be used, just the bare fact that the principal might use a weapon. I had difficulty in understanding why that should be so in terms of logic and common sense; factors which are usually a useful intuitive guide as to what the law is.

1. Various analogies were discussed. They led to these propositions:

• If an accused was aware that there was a possibility of the infliction of grievous bodily harm by sheer physical force, and that such force achieved such harm, then the accused would be guilty (T4086.30). If the accused was aware that there was a possibility of the infliction of grievous bodily harm by sheer physical force, but that the harm was caused by a weapon, the accused would be not guilty (T4086.35).
• If the accused was aware that there was a possibility of the infliction of grievous bodily harm by use of a weapon, but that such harm was caused by sheer physical force, the accused would be not guilty (T4079.25).
• If the accused was aware that there was a possibility of the infliction of grievous bodily harm by a relatively innocuous instrument (e.g. a butter knife) but the principal offender used a much more obviously deadly weapon (e.g. a shotgun fired at close range), then the accused would be guilty (T4096.5).

1. Mr Dunn QC, for the accused Hawi, Mr Young SC, for the accused Eken, and Mr Gordon, for the accused Kisacanin, aligned themselves with the submissions made by Mr Stratton. Mr Driels, for the accused Potrus, did not wish to be heard.

1. On the other hand, Mr Trevallion, for the accused Abounader, accepted that where a secondary participant contemplates the possibility of another participant in a joint criminal enterprise intentionally inflicting grievous bodily harm, it is unnecessary, as a matter of principle, for the Crown to prove a contemplation of the possible use of a weapon, if it is the case that the harm was in fact caused by a weapon. However, he submitted that on the facts of this case, there was no evidence to establish that an accused contemplated the possible intentional infliction of grievous bodily harm unless it could be shown that the accused contemplated that a weapon would or might be used (T4093).

1. My conclusion is that there is evidence capable of satisfying the jury that the Comanchero accused were engaged in a joint criminal enterprise to assault men in the Hells Angels group and that such evidence is also capable of satisfying the jury that it was contemplated that one of their number might intentionally inflict grievous bodily harm. Whether the jury will draw such conclusions is not presently relevant. It is unnecessary for the Crown to establish that it was contemplated that a weapon would be used for the infliction of such harm. I am fortified in the latter conclusion by what was said in Varley v R (1976) 12 ALR 347; R v Tangye (1997) 92 A Crim R 545; McAuliffe v The Queen [1995] HCA 37; (1995) 183 CLR 108; Osland v The Queen [1998] HCA 75; (1998) 197 CLR 316; Clayton v The Queen [2006] HCA 58; (2006) 81 ALJR 439; R v Keenan [2009] HCA 1; (2009) 236 CLR 397; and R v Nguyen [2010] HCA 38; (2010) 85 ALJR 8.

**********

Decision last updated: 14 February 2012