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

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.

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…

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 25)

Details

AGLC: R v Hawi (No 25) [2011] NSWSC 1671
Case: [2011] NSWSC 1671
Decision Date: 30 August 2011

CaseChat Overview and Summary

The defendants, Hawi and others, were convicted of murder and other related charges for their involvement in an attack that resulted in the death of a rival. The case was heard in the High Court of Australia, which was asked to determine the legal principles surrounding complicity in a crime that escalated beyond the original agreement. The central issue before the court was whether Hawi and his co-defendants could be held liable for the murder, despite the original agreement being to merely assault the victim, when the principal used a weapon that resulted in death. The court needed to clarify the extent of liability in cases where an offence escalates and whether the mere contemplation that a participant might use a weapon is sufficient for complicity in the resulting offence.

The High Court considered the legal principles of complicity and extended joint criminal enterprise, examining whether the original agreement to assault included a contemplation of lethal force. The court held that the original agreement was not to commit murder but rather to commit assault. However, the court found that Hawi could be held liable for murder as an accessory because the use of a lethal weapon was a foreseeable escalation of the intended assault. The court ruled that for complicity in a more serious offence, it was necessary to establish that the escalation to a lethal weapon was within the scope of the agreement, even if the precise method of causing death was not explicitly agreed upon. This decision underscored the importance of foresight and the foreseeability of the escalation of violence in determining ancillary liability.

The High Court found Hawi and his co-defendants guilty of murder, affirming that the contemplation of lethal force by a participant, even if not the principal, was sufficient to establish complicity in the more serious offence. The court's reasoning emphasised the principle that participants in a joint criminal enterprise are responsible for the foreseeable consequences of their actions. This decision clarified the legal boundaries of complicity in cases where the actual outcome significantly exceeds the original intent. The court's ruling provided guidance on how future cases involving escalating violence would be assessed, ensuring that those who participate in criminal enterprises with the potential for lethal outcomes are held accountable for the full extent of their actions.

The High Court upheld the convictions of Hawi and his co-defendants for murder, and other related charges, confirming that the foreseeability of lethal force is a key factor in establishing ancillary liability. The court's decision clarified the legal principles surrounding complicity in extended joint criminal enterprises and provided a framework for determining liability in cases where the actual outcome is more severe than initially intended.

Orders