Citation: R v Hawi & ors (No 28) [2011] NSWSC 1674
Court: Supreme Court of New South Wales
Date: 1 September 2011
Judge: R A Hulme J
Background
This decision arose during the trial of six accused (referred to by their roles as the Comanchero accused) on a primary charge of murder. The Crown alleged that the accused were involved in a violent incident involving members of the Hells Angels motorcycle club. From the outset of proceedings, the Crown had flagged that it would also invite the jury to consider manslaughter as an alternative verdict if there was a reasonable doubt about murder.
The Crown identified two alternative bases for a manslaughter verdict. The first was a straightforward joint criminal enterprise to commit a dangerous and unlawful act, namely to assault Hells Angels members. The second was an extended joint criminal enterprise, where the foundational agreed crime was intimidation and the incidental crime was a physical assault contemplated as a possibility arising from that enterprise.
Several accused, through their counsel, objected to the second basis being put to the jury. The objection raised a question of principle: whether intimidation could serve as the foundational crime for an extended joint criminal enterprise where the incidental crime was assault giving rise to manslaughter liability.
Legal Issues
- Whether a joint criminal enterprise to intimidate can serve as the foundational crime for an extended joint criminal enterprise leading to manslaughter, where the incidental crime is a dangerous and unlawful assault.
- Whether there was sufficient connection between intimidation (as the foundational crime) and physical assault (as the incidental crime) to make the second basis of manslaughter legally viable.
- Whether putting the second basis to the jury would cause unnecessary complexity or confusion given the existing multiplicity of issues in the trial.
Decision
Hulme J ruled that the second basis for manslaughter was a viable and appropriate one to put to the jury. His Honour reasoned that, given the alleged circumstances of a group approaching members of a rival motorcycle club with a purpose of intimidation, it was well open to the jury to conclude that an escalation into physical assault was within the contemplation of those involved in the enterprise. That assault, objectively, carried an appreciable risk of someone sustaining serious injury, satisfying the requirements of the dangerous and unlawful act element.
His Honour rejected the analogy advanced by counsel for one of the accused, which compared the situation to a fraud where one participant unexpectedly punches a bystander. In the context of this evidence, the connection between intimidating a rival group and a contemplated physical assault was not as attenuated as that comparison suggested.
On the question of jury confusion, Hulme J acknowledged the concern and said he had taken time overnight to reflect on it. After that reflection, he concluded that, in the overall context of the trial, the addition of the second manslaughter basis would not create undue complication warranting its exclusion.
Orders Made
No orders were made in this decision.
Key Takeaways
- A joint criminal enterprise to intimidate can, in appropriate factual circumstances, serve as the foundational crime for an extended joint criminal enterprise where a physical assault is contemplated as a possible incident of that intimidation.
- The connection between the foundational crime and the incidental crime does not need to be one of similarity or sameness; what matters is whether participants in the enterprise contemplated the possibility of the incidental act occurring.
- Where intimidation of a rival group is alleged, it is open to a jury to find that escalation to physical assault was within the contemplation of the participants, particularly where the parties were directly confronting each other.
- Hulme J confirmed that complexity or potential jury confusion alone is not a sufficient reason to withhold an otherwise legally sound alternative basis for manslaughter from the jury.
- The decision is confined to its procedural and evidentiary context: it addresses only whether the second manslaughter basis was appropriate to leave to the jury, not whether the accused were in fact guilty on that basis.
Legislation and Cases Referenced
Legislation: Not identified in the judgment text.
Cases: The Crown Prosecutor referenced the matter of a person identified as "Mr Aouli" as partial precedent for the second manslaughter basis. No formal case citations were set out in the text of this decision.