Citation: R v Hawi & ors (No 25) [2011] NSWSC 1671
Court: Supreme Court of New South Wales
Date: 30 August 2011
Judge: R A Hulme J
Background
Six accused members of the Comanchero motorcycle club faced trial for the murder of a man who was part of a Hells Angels group at Sydney Airport. The deceased died from combined blunt force head injuries and stab wounds to the chest and abdomen. The Crown's case was that the accused participated in a group assault on members of the Hells Angels, during which the deceased was pursued, brought to the ground, beaten with a bollard, and stabbed.
The Crown put its murder case on two alternative bases. The first was a joint criminal enterprise with the agreed object of inflicting grievous bodily harm on members of the Hells Angels group. The second was an extended joint criminal enterprise: an agreement to assault Hells Angels members, with each accused having contemplated the possibility that one of their number might intentionally inflict grievous bodily harm in the course of that assault.
As closing addresses were about to commence, counsel for one of the accused raised a submission that the Crown was required to prove something further: that each accused was aware that at least one co-accused was armed with a weapon (a knife, scissors, or bollard) that might be used with intent to inflict grievous bodily harm or to kill.
Legal Issues
- Whether, under the doctrine of extended joint criminal enterprise, the Crown must prove that an accused contemplated the possible use of a weapon by a co-participant, where the principal offender used a weapon to kill the victim.
- Whether a contemplation of the possible intentional infliction of grievous bodily harm by physical force alone is sufficient to establish liability where harm is ultimately caused by a weapon.
- Whether the reasoning in R v Sharah (1992) 30 NSWLR 292 established a general principle requiring weapon-awareness in such cases.
Decision
Hulme J rejected the submission that the Crown was required to prove weapon-awareness as an element of extended joint criminal enterprise in these circumstances. His Honour acknowledged the time constraints of a running trial but explained the two principal reasons underpinning his ruling.
First, the passages from R v Sharah on which the defence placed heavy reliance did not establish any general principle of universal application in extended joint criminal enterprise cases. Cases involving robbery, where weapon-awareness questions commonly arise, must be read with caution before extracting broad statements of principle applicable to assault-based enterprises.
Second, the defence position produced logical inconsistency. Under the analysis put by defence counsel, an accused would be guilty if grievous bodily harm was contemplated and caused by bare physical force, but not guilty if the same harm was instead caused by a weapon, even though the accused's mental state was identical in both scenarios. His Honour found this illogical and inconsistent with common sense, noting that the evidence in this case was capable of establishing contemplation of grievous bodily harm by physical force alone, given that 12 men, several large and powerfully built, had confronted a group including one short and slightly built man.
His Honour concluded that the evidence was capable of satisfying the jury that the accused were engaged in a joint criminal enterprise to assault the Hells Angels group, and that each accused contemplated the possibility that one of their number might intentionally inflict grievous bodily harm. The Crown did not need to prove that any accused contemplated the use of a weapon to achieve that harm. Hulme J noted this conclusion was fortified by a line of High Court authority including McAuliffe v The Queen, Osland v The Queen, Clayton v The Queen, R v Keenan, and R v Nguyen.
Orders Made
No orders were made in this decision.
Key Takeaways
- Under the doctrine of extended joint criminal enterprise, it is not a necessary element for the Crown to prove that an accused contemplated the possible use of a weapon by a co-participant, where the accused contemplated that grievous bodily harm might intentionally be inflicted during the enterprise.
- R v Sharah (1992) 30 NSWLR 292 does not establish a general principle requiring weapon-awareness in all extended joint criminal enterprise cases; its reasoning arises in a specific robbery context and does not translate automatically to assault-based enterprises.
- A line of High Court authority, including McAuliffe, Osland, Clayton, Keenan, and Nguyen, supports the proposition that the relevant question is whether the accused contemplated the possibility of the intentional infliction of grievous bodily harm, not the means by which it might be inflicted.
- Where evidence establishes that a large group of men agreed to assault a significantly smaller group, that evidence may be capable of sustaining a finding of contemplated grievous bodily harm even without proof of weapon awareness.
- This ruling was delivered as an interlocutory ruling at trial, without full formal analysis of all authorities, and Hulme J expressly acknowledged that the reasoning would require more thorough consideration if later called into question on appeal.
Legislation and Cases Referenced
Cases:
- R v Sharah (1992) 30 NSWLR 292
- Regina v Suteski [2002] NSWCCA 509; (2002) 56 NSWLR 182
- McAuliffe v The Queen [1995] HCA 37; (1995) 183 CLR 108
- Osland v The Queen [1998] HCA 75; (1998) 197 CLR 316
- Clayton v The Queen [2006] HCA 58; (2006) 81 ALJR 439
- R v Keenan [2009] HCA 1; (2009) 236 CLR 397
- R v Nguyen [2010] HCA 38; (2010) 85 ALJR 8
- R v Tangye (1997) 92 A Crim R 545
- Varley v R (1976) 12 ALR 347
Legislation: No specific legislation was cited in the decision.