AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
2
Supreme Court 18 August 2011

R v Hawi & ors (No 18)

[2011] NSWSC 1664

Assault & violencePublic order & justice offences
CRIMINAL LAW PROCEDURE INFORMATION, INDICTMENT OR PRESENTMENT AMENDMENT IMMATERIALITY OR ABSENCE OF PREJUDICE PARTICULAR OFFENCES

Citation: R v Hawi & ors (No 18) [2011] NSWSC 1664
Court: Supreme Court of New South Wales
Date: 18 August 2011
Judge(s): Hulme J

Background

This interlocutory judgment arose during a major criminal trial involving multiple accused charged with, among other things, riot under s 93B of the Crimes Act 1900. The alleged conduct occurred on 22 March 2009 at Mascot. After the Crown closed its case, certain accused made no-case-to-answer submissions that prompted scrutiny of the form of the indictment.

Counsel for one of the accused raised a point about the wording of the riot counts. The relevant counts alleged that each accused "used or threatened unlawful violence," but counsel argued that the offence of riot requires proof of actual use of unlawful violence, not merely threatening such violence. The Crown accepted that proposition.

The Crown then applied for leave to amend the indictment to remove the reference to "threatening" unlawful violence from the riot counts, so that each count would properly reflect the statutory elements of the offence.

  • Whether the actus reus of the statutory offence of riot under s 93B of the Crimes Act 1900 is satisfied by threatening unlawful violence, or whether actual use of unlawful violence is required.
  • Whether leave to amend the indictment should be granted to correct the defective counts.

Decision

Hulme J confirmed that s 93B(1) operates in two parts. The first part establishes the contextual setting: twelve or more persons present together who use or threaten unlawful violence for a common purpose, such that a person of reasonable firmness would fear for their safety. The second part, which defines individual criminal liability, specifies that only "each of the persons using unlawful violence for the common purpose" is guilty of riot. A person who merely threatened unlawful violence, without actually using it, does not commit the offence.

His Honour supported this construction by comparing the riot provision with the contemporaneously enacted offence of violent disorder in the Summary Offences Act 1988. That provision expressly extends liability to persons "using or threatening unlawful violence." The deliberate omission of the word "threatening" from the individual liability limb of s 93B was therefore significant. His Honour also noted that s 93B mirrors s 1 of the Public Order Act 1986 (UK), and drew support from English Court of Appeal decisions in R v Jefferson and R v Tyler, which construed identical language in the same way.

Although some respected commentary sources and obiter remarks in prior New South Wales cases had described the elements more broadly, those statements were not binding and, on closer analysis, did not resolve the specific point in issue. His Honour concluded that the indictment was defective in the same manner as the English indictments considered in Tyler and Jefferson, and that it required amendment.

On the question of amendment, Hulme J found that leave should be granted under ss 20 and 21 of the Criminal Procedure Act 1986. No accused objected to the proposed amendment, and no prejudice was alleged. The amendment merely removed an erroneously included alternative, leaving the accused to answer only what the statute required.

Orders Made

  • Leave granted to amend counts 2 and 4 of the indictment to remove the reference to "threatened" unlawful violence in the riot charges.

Key Takeaways

  • Under s 93B(1) of the Crimes Act 1900, a person is guilty of riot only if they actually used unlawful violence for the common purpose. Merely threatening unlawful violence, even within a group of twelve or more who collectively use or threaten such violence, does not satisfy the individual liability element of the offence.
  • The contrast between the riot provision and the violent disorder offence in the Summary Offences Act 1988 is instructive: the latter expressly includes both using and threatening unlawful violence as grounds for individual liability, confirming the omission in s 93B was deliberate.
  • Section 93B mirrors s 1 of the Public Order Act 1986 (UK), and English authority on the construction of that provision is persuasive as to the correct reading of the New South Wales offence.
  • Prior obiter statements in New South Wales cases and legal commentary suggesting that threatening unlawful violence could itself ground liability for riot were not determinative, as the issue had not been squarely decided before this judgment.
  • An indictment charging riot in terms of "used or threatened unlawful violence" is defective but not a nullity. It is capable of amendment under ss 20 and 21 of the Criminal Procedure Act 1986 where no irreparable prejudice results to any accused.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 93B
- Crimes (Amendment) Act 1988 (NSW)
- Criminal Procedure Act 1986 (NSW), ss 20, 21
- Criminal Appeal Rules, r 4
- Summary Offences Act 1988 (NSW), s 11A
- Public Order Act 1986 (UK), s 1

Cases
- Regina v Asquith (1994) 72 A Crim R 250
- 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
- James Borodin v R; Irene Borodin v R; ED v R; Bogomiagkou v R [2006] NSWCCA 83
- Colosimo and Ors v Director of Public Prosecutions (NSW) [2005] NSWSC 854
- R v Jefferson [1994] 1 All ER 270
- R v Tyler (1993) 96 Cr App R 332