Regina v H Kalache - [1999] NSWSC 556

CITATION: Regina v H Kalache [1999] NSWSC 556

CURRENT JURISDICTION: Criminal

FILE NUMBER(S): 70021/98

HEARING DATE(S): 07/05/99

JUDGMENT DATE:
9 June 1999

PARTIES :

Regina v Hassan Kalache

JUDGMENT OF: Sperling J

COUNSEL : For Crown: M L Barr
For Accused Hassan Kalache: B T Stratton QC

SOLICITORS: For Crown: F Gray (DPP NSW)
For Accused: Hassan Kalache: Trevor Nyman & Company

CATCHWORDS: CRIMINAL LAW - verdict of acquittal by direction - joint criminal enterprise - common purpose - departure from common design.

CASES CITED: Doney (1990-91) 171 CLR 207;
R (1989) 18 NSWLR 74; Tangye (1997) 92 A Crim R 545; McAuliffe (1995) 183 CLR 108

DECISION: Direct verdict of acquittal

IN THE SUPREME COURT
OF NEW SOUTH WALES
CRIMINAL DIVISION
SPERLING J
Wednesday, 9 June 1999
700217/98 - Regina v Hassan Kalache
JUDGMENT
HIS HONOUR:
1 On 7 May 1997 I directed the jury to acquit the accused Mr Kalache. These are my reasons.
2 The threshold required for such a direction is stated as follows: In Doney (1990-91) 171 CLR 207, 212:
“There is no doubt that it is a trial judge’s duty to direct such a verdict if the evidence cannot sustain a guilty verdict or, as is commonly said, if there is no evidence upon which a jury could convict.”
3 The Crown case is to be taken at its highest: R (1989) 18 NSWLR 74, 81; Doney at 213.
4 The case against Mr Kalache, as outlined in submissions, was one of “straightforward joint criminal enterprise” or “common purpose” as those expressions are used in the authorities, there being no evidence that it was Mr Kalache who stabbed the deceased.
5 In Tangye (1997) 92 A Crim R 545, Hunt CJ at CL (with whom McInerney and Sully JJ agreed) said (at 556-558):
“The Crown needs to rely upon a straightforward joint criminal enterprise only where - as in the present case - it cannot establish beyond reasonable doubt that the accused was the person who physically committed the offence charged. It needs to rely upon the extended concept of joint criminal enterprise, based upon common purpose, only where the offence charged is not the same as the enterprise agreed. This Court has been making that point for years, See, for example: Regina v Stokes& Difford (1950) 51 A Crim R 25 at 35-37; Regina v Clough (1992) 28 NSWLR 396 at 400.

….
The law is that, where two or more persons carry out a joint criminal enterprise, each is responsible for the acts of the other or others in carrying out that enterprise. The Crown must establish both the existence of that joint criminal enterprise and the participation in it by the accused.
….
A joint criminal enterprise exists where two or more persons reach an understanding or arrangement amounting to an agreement between them that they will commit a crime. The understanding or arrangement need not be express, and its existence may be inferred from all…

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 Regina v H Kalache

Details

AGLC: Regina v H Kalache [1999] NSWSC 556
Case: [1999] NSWSC 556
Decision Date: 9 June 1999

CaseChat Overview and Summary

In Regina v H Kalache, the respondent was charged with conspiring with others to import drugs into Australia, a charge that involved the doctrine of joint criminal enterprise. The case came before the court on the basis of the respondent's appeal against a conviction, arguing that the trial judge erred in directing the jury to acquit him on certain counts. The central issue in this appeal was whether the trial judge correctly exercised his discretion in directing a verdict of acquittal on charges that the respondent had departed from the common design.

The court examined whether the trial judge should have allowed the jury to determine the respondent's involvement in the alleged joint criminal enterprise or whether there was insufficient evidence to support a conviction. The legal principles governing joint criminal enterprise and common purpose were crucial in this analysis. The court considered whether the evidence presented was adequate to establish that the respondent remained part of the common purpose even after the departure from the common design.

The court concluded that the trial judge's decision to direct a verdict of acquittal was correct. The evidence did not support a finding that the respondent continued to participate in the joint criminal enterprise after departing from the common design. The court held that the trial judge properly exercised his discretion in directing the acquittal, as the evidence was insufficient to prove the respondent's continued involvement in the criminal activity beyond the initial common purpose. The appeal was therefore dismissed.

Orders