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Supreme Court 11 April 2013

R v Abdollahi (No 12)

[2013] NSWSC 485

Public order & justice offences
CRIMINAL LAW PROCEDURE DUPLICITY IN INDICTMENT NO DUPLICITY

Citation: R v Abdollahi (No 12) [2013] NSWSC 485
Court: Supreme Court of New South Wales
Date: 11 April 2013
Judge(s): Hulme J

Background

This decision arose during a criminal trial involving multiple accused, including one represented by Mr Little. The accused faced counts of riot and affray under the Crimes Act 1900 (NSW), arising from events at a detention centre in April 2011. The trial had progressed to the closing addresses stage before the issue in dispute was raised.

Counsel for the accused Shahsawari applied mid-trial for the Crown to elect between two alleged elements in each of the riot and affray charges. The argument was that each charge was bad for duplicity, meaning each single count impermissibly charged two separate offences at once.

The application was made late, after arraignment, pre-trial hearings, a jury being empanelled, and the close of all evidence. The Court noted that no other accused joined the application.

  • Whether s 93B of the Crimes Act 1900 (NSW), which refers to persons who "use or threaten unlawful violence", creates two distinct offences of riot rather than one.
  • Whether s 93C of the Crimes Act 1900 (NSW), which similarly refers to a person who "uses or threatens unlawful violence", creates two distinct offences of affray rather than one.
  • Whether the counts of riot and affray as framed in the indictment were therefore bad for duplicity, requiring the Crown to elect between the two alleged elements.

Decision

On the riot charge, Hulme J rejected the argument by reference to English authority interpreting the identical provision in the Public Order Act 1986 (UK). The Court drew on R v Tyler and R v Jefferson to explain that s 93B has two parts: a contextual element (12 or more persons using or threatening unlawful violence for a common purpose) and the actual offence itself (each person who used unlawful violence for the common purpose). The phrase "use or threaten" appears only in the contextual setting, not in the definition of the offence proper.

The indictment in this case charged the offence precisely in that two-part structure, averring the accused "being one of twelve or more persons present together using or threatening unlawful violence for a common purpose did use unlawful violence for the said common purpose." Hulme J found this was entirely conforming with Tyler and Jefferson, and that a single offence was charged. There was no duplicity.

On the affray charge, Hulme J noted that no authority was cited by counsel in support of the duplicity argument. Referring to the English origins of s 93C and the House of Lords decision in I v Director of Public Prosecutions, the Court accepted that the phrase "uses or threatens unlawful violence" in the affray provision describes a single element of the offence. Requiring a jury to separately identify whether conduct constituted "use" or "threat" would, in the Court's view, deprive the section of its intended effect, particularly in fluid situations involving multiple participants.

Hulme J also noted that the accused had not identified any prejudice, no uncertainty about the Crown case as actually presented, and no complaint about the particulars provided. The application was refused on all grounds.

Orders Made

  • The application for an order requiring the Crown to make an election to avoid duplicity in the charges of riot and affray was refused.

Key Takeaways

  • Sections 93B and 93C of the Crimes Act 1900 (NSW) each create a single offence; the phrase "use or threaten unlawful violence" does not divide each provision into two separate offences.
  • In the riot provision (s 93B), "use or threaten unlawful violence" describes the contextual setting in which the offence occurs, not two alternative forms of the offence itself. The offence requires that the individual accused used unlawful violence for the common purpose.
  • A count of affray framed as "did use or threaten unlawful violence" reflects the single statutory element and is not duplicitous.
  • Duplicity in an indictment is a distinct concept from the adequacy of the Crown case or any prejudice to an accused; the Supreme Court noted the absence of any identified prejudice, uncertainty, or embarrassment as a further reason the application lacked merit.
  • The English authorities interpreting the Public Order Act 1986 (UK), particularly R v Tyler and R v Jefferson, are treated as directly applicable to the equivalent NSW provisions given their near-identical wording.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 93B, 93C
- Crimes Amendment Act 1988 (NSW)
- Public Order Act 1986 (UK), ss 1, 3

Cases
- S v The Queen [1989] HCA 66; (1989) 168 CLR 266
- Walsh v Tattersall [1996] HCA 26; (1996) 188 CLR 77
- R v Tyler (1993) 96 Cr App R 332
- R v Jefferson [1994] 1 All ER 270
- I v Director of Public Prosecutions [2001] UKHL 10; [2002] 1 AC 285
- R v Smith [1997] 1 Cr App R 14
- Colosimo and Ors v Director of Public Prosecutions (NSW) [2005] NSWSC 854; (2005) 64 NSWLR 645
- R v Hawi (No 18) [2011] NSWSC 1664