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23
Court of Criminal Appeal 16 May 2014

Hawi v R

[2014] NSWCCA 83

Also reported as (2014) 244 A Crim R 169
Assault & violenceHomicidePublic order & justice offences
CRIMINAL CONVICTION WHETHER VERDICT UNREASONABLE WHETHER JURY VERDICTS INCONSISTENT DIRECTIONS TO JURY WHETHER FAILURE TO LEAVE PROVOCATION

Citation: Hawi v R [2014] NSWCCA 83
Court: NSW Court of Criminal Appeal
Date: 16 May 2014
Judges: Bathurst CJ; Price J; McCallum J

Background

On 22 March 2009, members of two rival motorcycle clubs, the Comanchero Motorcycle Club and the Hells Angels Motorcycle Club, clashed at Sydney Domestic Airport. The violence began outside Gate 5 of Terminal 3 and escalated into a riot in the departure hall, during which a Hells Angels member was killed.

The appellant, then the National President of the Comanchero Motorcycle Club, was charged with murder along with five co-accused. After a trial running from May to November 2011, the appellant was convicted of murder. All five co-accused were acquitted of murder; three were convicted of riot.

The appellant appealed his murder conviction on several grounds, including that the verdict was unreasonable, that the jury verdicts were inconsistent, that the trial judge should have left provocation as a defence, that the judge failed to disclose a communication between judge and jury, and that the jury was misdirected on how to approach alternative charges.

  • Whether the murder verdict was unreasonable or could not be supported by the evidence (grounds 1 and 2)
  • Whether the trial judge erred in declining to leave the defence of provocation under s 23 of the Crimes Act 1900 (NSW) to the jury (ground 3)
  • Whether the trial judge breached the open court principle and s 68B of the Jury Act 1977 (NSW) by failing to disclose to the parties the content of a communication between the judge and the jury (ground 4)
  • Whether the trial judge misdirected the jury on how to deliberate on alternative charges (ground 5)
  • What orders should be made where the three-judge court reached no majority on the primary grounds

Decision

Grounds 1 and 2: Unreasonable verdict and inconsistency

Bathurst CJ concluded that the verdict was unreasonable. His Honour conducted an independent assessment of the evidence and was not satisfied that the jury, acting reasonably, ought to have been satisfied beyond reasonable doubt of the appellant's guilt, given weaknesses in the identification and other evidence. McCallum J reached the opposite conclusion, finding that the evidence was capable of supporting the conviction and that the jury's verdict should stand. Price J addressed other grounds and did not determine grounds 1 and 2. The court therefore had no majority on these grounds.

Ground 3: Provocation

Price J found that provocation should have been left to the jury, constituting a substantial miscarriage of justice, and would have allowed the appeal on that basis. McCallum J disagreed, concluding that no jury acting reasonably could have found that the deceased's conduct would have caused an ordinary person in the appellant's position to lose self-control to the extent of fatally striking a prone man in a public place. McCallum J also held that even if provocation should have been left, no substantial miscarriage of justice had in fact occurred. Again, no majority was reached on this ground.

Grounds 4 and 5: Jury communication and deliberation directions

Both Price J and McCallum J rejected these grounds. On ground 4, the judges agreed that the communication in question formed part of the jury's deliberations and was not required to be disclosed under s 68B of the Jury Act. On ground 5, both judges accepted that while the jury could deliberate freely, the trial judge was required to take a verdict on the primary charge first, and the directions given reflected this correctly.

The majority problem and how it was resolved

No majority existed either for dismissing or allowing the appeal. Bathurst CJ identified this as a procedural difficulty without obvious statutory resolution, examined several possible approaches, and ultimately concluded that the least unsatisfactory outcome was to order a new trial. This result reflected the highest "common denominator" available: both Bathurst CJ (who would have allowed the appeal outright) and Price J (who would have ordered a new trial) agreed that the conviction should not stand. McCallum J, while disagreeing, concurred with the Chief Justice's procedural reasoning as to how the impasse should be resolved.

Orders Made

  • The appeal be allowed
  • The verdict of the jury be set aside and the conviction quashed
  • There be a new trial

Key Takeaways

  • Where a three-judge Court of Criminal Appeal cannot form a majority either for dismissal or for allowing an appeal, the court may adopt a "least unsatisfactory outcome" approach, identifying the result on which the broadest agreement can be found across the differing judgments.
  • An independent appellate assessment of whether a jury verdict is unreasonable (under s 6(1) of the Criminal Appeal Act 1912) requires the court to evaluate the sufficiency and quality of the evidence, but this process does not replace or replicate the jury's role, and the appellant bears the burden of demonstrating the verdict should not stand.
  • Under s 23 of the Crimes Act 1900, the objective test for provocation does not apply a lower standard of self-control to members of criminal organisations than to other citizens, as confirmed by McCallum J's analysis.
  • A communication between a trial judge and a jury during deliberations may fall within the protection for jury deliberations under s 68B of the Jury Act 1977, even if it touches on tentative agreement about lesser charges, provided no formal verdict has been taken.
  • Until a verdict is formally taken on a primary count, any expression of agreement among jurors about alternative or lesser charges remains part of the jury's deliberations and does not constitute a verdict or evidence of jury misconduct.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 23 and 421
- Criminal Appeal Act 1912 (NSW), ss 3, 6 and 21A
- Jury Act 1977 (NSW), ss 55F, 56 and 68B
- Supreme Court Act 1970 (NSW), s 45

Cases
- M v The Queen [1994] HCA 63; (1994) 181 CLR 487
- MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606
- Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559
- Masciantonio v R [1995] HCA 67; (1995) 183 CLR 58
- Huynh v R [2013] HCA 6; (2013) 87 ALJR 434
- Likiardopoulos v The Queen [2012] HCA 37; (2012) 247 CLR 265
- MacKenzie v The Queen [1996] HCA 35; (1996) 190 CLR 348
- Gilbert v The Queen [2000] HCA 15; (2000) 201 CLR 414
- HML v The Queen [2008] HCA 16; (2008) 235 CLR 334
- Black v R [1993] HCA 71; (1993) 179 CLR 44
- McAuliffe v The Queen [1995] HCA 37; (1995) 183 CLR 108
- Burrell v R [2007] NSWCCA 65; (2007) 190 A Crim R 148