Regina v H Kalache [1999] NSWSC 556

New South Wales Supreme Court CITATION : Regina v H Kalache [1999] NSWSC 556 CURRENT JURISDICTION : Criminal FILE NUMBER(S) : 70021/98 HEARING DATE(S) : 07/05/99 JUDGMENT DATE : 9 June 1999

PARTIES : Regina v Hassan Kalache JUDGMENT OF : Sperling J

COUNSEL : For Crown: M L Barr For Accused Hassan Kalache: B T Stratton QC SOLICITORS : For Crown: F Gray (DPP NSW) For Accused: Hassan Kalache: Trevor Nyman & Company CATCHWORDS : CRIMINAL LAW - verdict of acquittal by direction - joint criminal enterprise - common purpose - departure from common design. CASES CITED : Doney (1990-91) 171 CLR 207; R (1989) 18 NSWLR 74; Tangye (1997) 92 A Crim R 545; McAuliffe (1995) 183 CLR 108 DECISION : Direct verdict of acquittal

IN THE SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION

SPERLING J

Wednesday, 9 June 1999

700217/98 - Regina v Hassan Kalache

JUDGMENT

HIS HONOUR: 1 On 7 May 1997 I directed the jury to acquit the accused Mr Kalache. These are my reasons. 2 The threshold required for such a direction is stated as follows: In Doney (1990-91) 171 CLR 207, 212: "There is no doubt that it is a trial judge's duty to direct such a verdict if the evidence cannot sustain a guilty verdict or, as is commonly said, if there is no evidence upon which a jury could convict." 3 The Crown case is to be taken at its highest: R (1989) 18 NSWLR 74, 81; Doney at 213. 4 The case against Mr Kalache, as outlined in submissions, was one of "straightforward joint criminal enterprise" or "common purpose" as those expressions are used in the authorities, there being no evidence that it was Mr Kalache who stabbed the deceased. 5 In Tangye (1997) 92 A Crim R 545, Hunt CJ at CL (with whom McInerney and Sully JJ agreed) said (at 556-558): "The Crown needs to rely upon a straightforward joint criminal enterprise only where - as in the present case - it cannot establish beyond reasonable doubt that the accused was the person who physically committed the offence charged. It needs to rely upon the extended concept of joint criminal enterprise, based upon common purpose, only where the offence charged is not the same as the enterprise agreed. This Court has been making that point for years, See, for example: Regina v Stokes & Difford (1950) 51 A Crim R 25 at 35-37; Regina v Clough (1992) 28 NSWLR 396 at 400. …. The law is that, where two or more persons carry out a joint criminal enterprise, each is responsible for the acts of the other or others in carrying out that enterprise. The Crown must establish both the existence of that joint criminal enterprise and the participation in it by the accused. …. A joint criminal enterprise exists where two or more persons reach an understanding or arrangement amounting to an agreement between them that they will commit a crime. The understanding or arrangement need not be express, and its existence may be inferred from all the circumstances. It need not have been reached at any time before the crime is committed. The circumstances in which two or more persons are participating together in the commission of a particular crime may themselves establish an unspoken understanding or arrangement amounting to an agreement formed between them then and there to commit that crime. …. A person participates in that joint criminal enterprise either by committing the agreed crime itself or simply by being present at the time when the crime is committed, and (with knowledge that the crime is to be or is being committed) by intentionally assisting or encouraging another participant in the joint criminal enterprise to commit that crime. The presence of that person at the time when the crime is committed and a readiness to give aid if required is sufficient to amount to an encouragement to the other participant in the joint criminal enterprise to commit the crime. …. As I have said, common purpose becomes necessary only where there has been an agreement to carry out a particular crime (some text books call it the foundational crime) but some other crime has been committed which had been within the contemplation of the accused as a possible incidence in the execution of their agreed joint criminal enterprise (some text books call it the incidental crime) which is said to be within the scope of the common purpose: Johns v The Queen (1980) 143 CLR 108 at 130-131; Mills v The Queen (1986) 68 ALR 455 at 455; McAuliffe v The Queen (1995) 183 CLR 108, 113-116. 6 The test is subjective: McAuliffe, at 114-5. 7 "Straightforward joint criminal enterprise" requires an agreement to do some act or acts constituting murder or manslaughter. "Common purpose" requires agreement to commit a "foundational crime", the "incidental crime" being the crime charged, that is, murder or the statutory alternative of manslaughter. 8 The evidence at its highest - according to the Crown Prosecutor's submissions - was as follows: (a) Mr Kalache arrived at the General Bourke Hotel with others, including Mr Sleiman. (b) Mr Kalache, with another member of the group, was directly involved in an altercation with the deceased in the toilets. (c) Mr Kalache was present in the group when Mr Sleiman became involved in an altercation with the deceased. (d) Mr Kalache approached the deceased and induced the deceased to leave the hotel with him. (e) Mr Kalache and the deceased were followed by other members of the group, including Mr Sleiman. (f) Mr Kalache and the deceased walked onto the grassed area in front of the hotel, followed by others in the group. (g) An incident then occurred which involved the deceased and others moving over an area on both sides of two trees located in the grassed area. (h) The deceased was, at some stage during the incident, pushed on the shoulder by Mr Kalache, assaulted by one or more of the group (causing contusion and abrasion injuries to the face, head and hands), and was fatally stabbed in the chest and upper abdomen. (i) Shortly after the incident, the deceased was asked who did it. He replied that it was Mr Kalache. This was not relied upon by the Crown as evidence that Mr Kalache stabbed the deceased. (That concession by the Crown - if it be a concession - was rational, proper and appropriate. I do not believe the Crown had the alternative open to it as a practical matter.) The Crown relied on the deceased's statement as evidence that Mr Kalalche was present and participated in the assault on the deceased to a significant degree. (j) Immediately following the incident, Mr Kalache picked up the knife which had fallen to the ground. (k) Mr Sleiman and Mr Kalache ran from the immediate scene. (l) Mr Sleiman and Mr Kalache (with another or others) entered Mr Sleiman's motor vehicle, which was parked in the street nearby, and drove off. (m) When interviewed by the police, Mr Kalache said, untruthfully, that he was not there at the time and did not know that Mr Sleiman was there. 9 Counsel for Mr Kalache submitted that there was no evidence of some of these factual matters. I assumed, without deciding that there was. 10 On those facts, there was no evidence of agreement (express or implied) between Mr Kalache and any other or others to injure the deceased with the specific intent required to constitute murder or by an unlawful and dangerous act so as to constitute manslaughter. Therefore, there is no evidence of "straightforward joint criminal enterprise". 11 As to "common purpose", I assumed, without deciding, that there was evidence of agreement to commit a "foundational crime", namely assault. However, there was no evidence that Mr Kalache contemplated, as a possible incidence in the execution of the enterprise to commit that crime, that the crime of murder or manslaughter might be committed by one or more of the group in the way that occurred or in any cognate manner. 12 There was no evidence that Mr Kalache knew that anyone in the group had a knife. There was no evidence that Mr Kalache would have contemplated that a knife might be produced and used. 13 Adopting the language used in Anderson and Morris (1966) 2 QB 110, 120, "one of (the adventurers) has departed completely from the concerted action of the common design and has suddenly formed an intent to kill and has used a weapon and acted in a way which no party to that common design could suspect". Adopting the language used in Duong, Lu Do & Tran (1992) 61 A Crim R 140, 148, "the use of the knife ….was entirely outside the scope of what could be expected to occur …". **********