R v Hawi (No 28)

[2011] NSWSC 1674

Supreme Court

New South Wales

Medium Neutral Citation:	R v Hawi & ors (No 28) [2011] NSWSC 1674
Hearing dates:	30 August 2011
Decision date:	01 September 2011
Jurisdiction:	Common Law - Criminal
Before:	R A Hulme J
Decision:	Alternative basis for manslaughter to be put to the jury permitted
Catchwords:	CRIMINAL LAW - general matters - ancillary liability - complicity - common purpose - particular cases - manslaughter - extended joint criminal enterprise - whether common purpose to intimidate can be foundational crime for incidental crime of assault
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: From a very early stage of these proceedings, the Crown Prosecutor has indicated that she would be inviting the jury to consider finding the Comanchero accused guilty of manslaughter if there was a reasonable doubt about their guilt of the primary charge of murder. The issue did not receive much prominence in the Crown Prosecutor's opening address. There are understandable reasons for that which I do not need to address.

1. The Crown Prosecutor has now indicated the bases upon which the jury will be invited to return a verdict on manslaughter:

The basis would be, firstly, straight-forward joint criminal enterprise manslaughter which would be these elements, but if they were satisfied beyond reasonable doubt that an accused, one, was part of a joint criminal enterprise to commit a dangerous and unlawful act, namely, to assault one or more of the Hells Angels and that that assault carried with it an appreciable risk of jury, and satisfied that he participated in an agreement to assault the Hells Angels in some way, he could be guilty of manslaughter. That would be the straight-forward joint criminal enterprise.

But alternatively, your Honour, if they were satisfied beyond reasonable doubt that an accused was part of a joint criminal enterprise to intimidate one or more members of the Hells Angels as they approached them and contemplated the possibility that one of them would assault one or more of the Hells Angels, which is a dangerous and unlawful act carrying with it the appreciable risk of serious injury, and they participated in that intimidation in some way, they could be guilty of manslaughter.

Your Honour, the second one is partially taken from the basis upon which Mr Aouli was dealt with, although the significant difference is Mr Aouli didn't agree that he was present ready and willing to assist, whereas in this trial we say all of the six accused on trial did actually physically do something in that, but they'd be the two alternative bases on which we'd be putting manslaughter to the jury. (T4127 - 4128)

1. Mr Dunn QC, on behalf of the accused Hawi (T4128.12), and Mr Young SC, on behalf of the accused Eken (T4130.5), and Mr Driels, on behalf of the accused Potrus (T4130.28), took no objection to the course proposed by the Crown.

1. Mr Stratton SC, on behalf of the accused Menzies, had no objection to a case of manslaughter going to the jury upon the first of the bases indicated by the Crown Prosecutor, but objected to a case on the second. His submission is encapsulated in the following passage:

[I]n relation to the second basis, the foundational and incidental crimes are so different it would be like saying someone committing a fraud and one of his fellows unexpectedly punches out a passer-by. There's no relationship between the foundational and the incidental crime. (T4128.28).

1. Mr Stratton also submitted that the first basis was apt in the context of the evidence that is before the jury, while the second is not and that it would only serve to confuse the jury (T4128.45).

1. Mr Gordon, on behalf of the accused Kisacanin, supported the submissions of Mr Stratton, and stressed a concern about the potential for confusion of the jury (T4129). Mr Trevallion, on behalf of the accused Abounader, also supported the objection (T4130.14).

1. I indicated in short ex tempore reasons that it seemed that if a case was put to the jury that there was a joint criminal enterprise that had as its object the intimidation by the Comancheros of the Hells Angels, it would be well open to the jury to conclude, although clearly it is a matter for them, that there was contemplation that this could escalate into a physical assault which was of such a nature that it amounted to an unlawful and dangerous act that, objectively, carried with it an appreciable risk of someone sustaining serious injury. For these reasons, it seemed to me that it was a viable and appropriate basis upon which manslaughter could go to the jury.

1. I also indicated at the time that I was concerned about the prospect of this additional basis for manslaughter adding unnecessary complication when there is already a multiplicity of issues that the jury will be called upon to consider. I said that I would take the opportunity to reflect further upon that aspect. Having done so overnight, I have concluded that, in the overall context of the trial, there is no cause to be concerned about this prospect.

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Decision last updated: 14 February 2012