Citation: R v Hawi & ors (No 19) [2011] NSWSC 1665
Court: Supreme Court of New South Wales
Date: 22 August 2011
Judge(s): Hulme J
Background
The accused, a nominee member of the Comanchero motorcycle club, was charged with murder (alternatively riot) and affray arising from violent incidents at Sydney Airport's Qantas domestic terminal on 22 March 2009. The Crown alleged that two episodes of violence occurred between members and associates of the Comanchero and Hells Angels motorcycle clubs: one near Gate 5 and a second, more serious episode in the departure hall, which resulted in a death. Five other co-accused faced identical charges, and a sixth faced riot and affray only.
The Crown's case was that the violence began after Comanchero members travelling from Melbourne had a chance encounter with the president of the Hells Angels on their flight. Telephone calls were made to fellow members in Sydney, prompting a group of Comanchero members, including the accused, to travel urgently to the airport. The accused received multiple calls in quick succession and, despite initially indicating he was busy and not at home, agreed to attend.
After the Crown closed its case on 11 August 2011, counsel for the accused made a no case to answer submission. A question also arose concerning the correct construction of s 93B of the Crimes Act 1900, which governs the statutory offence of riot.
Legal Issues
- Whether there was sufficient evidence to require the accused to answer the charges of murder, riot, and affray, applying the test from Doney v R (Crown case taken at its highest)
- Whether the Crown was required to establish that the accused personally used, rather than merely threatened, unlawful violence for the riot charge under s 93B
- Whether the offence of riot under s 93B requires the common purpose to be directed against a "mutual enemy," as suggested by earlier common law authority in Anderson v Attorney-General for New South Wales
Decision
Hulme J applied the well-established no case principles: the Crown case must be taken at its highest, and if there is evidence, even if tenuous or vague, capable of supporting a guilty verdict, the matter must go to the jury. It is not the trial judge's role to assess whether a conviction would be unreasonable.
On the riot charge, the Crown conceded, and Hulme J accepted, that s 93B required proof that the accused actually used unlawful violence, not merely threatened it. This had prompted the Crown to seek and obtain leave to amend the indictment in earlier proceedings (R v Hawi & ors (No 18)).
On the question of common purpose, Hulme J rejected the submission that s 93B required the common purpose to be directed against a "mutual enemy." He noted that Anderson concerned the now-abolished common law offence and predated the 1988 enactment of s 93B, which closely mirrors the United Kingdom's statutory formulation introduced in 1986. Nothing in the text of s 93B imposes such a requirement, and the agreed fact of mutual hostility between the two clubs made it open to the jury to find a common purpose to engage in fighting.
Hulme J concluded that there was sufficient evidence on all three counts to go to the jury. The no case to answer submission was rejected in its entirety.
Orders Made
• The submission that there is no case to answer in respect to each of the counts to which Mr Kisacanin has pleaded not guilty is rejected.
Key Takeaways
- Under s 93B of the Crimes Act 1900, the prosecution must establish that an accused actually used unlawful violence, not merely threatened it, in order to prove the offence of riot.
- The common law requirement, derived from Anderson v Attorney-General for New South Wales, that a riot's common purpose be directed against a "mutual enemy" does not apply to the statutory offence of riot under s 93B, which post-dates and supersedes the common law position.
- Where the section closely mirrors a United Kingdom statutory formulation, pre-existing common law authorities should be approached with caution, and attention directed to the language of the statute itself.
- Evidence of an accused's membership of an organisation with a strict hierarchical structure, the rules governing that membership, and a pattern of telephone communications in the lead-up to a violent incident can collectively be sufficient to raise a case to answer, even in the absence of direct evidence of the content of those communications.
- The no case to answer threshold does not require the Crown to exclude reasonable hypotheses consistent with innocence; that question is for the jury to resolve.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 93B (riot)
Cases:
- Anderson v Attorney-General for New South Wales (1987) 10 NSWLR 198
- Field v Metropolitan Police Receiver [1907] 2 KB 853
- R v Hawi & ors (No 18) [2011] NSWSC (unreported)
- R v Keli Lane [No 18] [2010] NSWSC 1545
- Doney v R (1990) 171 CLR 207 (referenced in cited principles)