Supreme Court New South Wales Medium Neutral Citation: R v Hawi & ors (No 18) [2011] NSWSC 1664 Hearing dates: 18 August 2011 Decision date: 18 August 2011 Jurisdiction: Common Law - Criminal Before: R A Hulme J Decision: Leave granted to amend indictment Catchwords: CRIMINAL LAW - procedure - information, indictment or presentment - amendment - immateriality or absence of prejudice - leave granted to amend indictment CRIMINAL LAW - particular offences - offences against peace and public order - affray, riot, unlawful assembly and like offences - riot - generally - elements of the offence - actus reus of the offence requires actual use of unlawful violence - "threatening" unlawful violence insufficient Legislation Cited: Crimes Act 1900 Crimes (Amendment) Act 1988 Criminal Appeal Rules Criminal Procedure Act 1986 Public Order Act 1986 (UK) Summary Offences Act 1988 Cases Cited: Colosimo and Ors v Director of Public Prosecutions (NSW) [2005] NSWSC 854 James Borodin v R; Irene Borodin v R; ED v R; Bogomiagkou v R [2006] NSWCCA 83 R v Jefferson [1994] 1 All ER 270 R v Tyler (1993) 96 Cr App R 332 Regina v Aaron John Lee Maher; Regina v Dwayne Eric Welsh; Regina v Craig Vincent Lardner; Regina v Ronald Priestly [2005] NSWCCA 16; (2005) 154 A Crim R 457 Regina v Asquith (1994) 72 A Crim R 250 Texts Cited: Watson, Blackmore and Hosking, Criminal Law New South Wales, LBC Information Services, 2nd ed, Vol 2 Howie and Johnson, Criminal Practice and Procedure NSW, Butterworths New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 19 October 1988 Category: Procedural and other rulings Parties: Regina Mahmoud Hawi Christian Adam Menzies Farres Abounader Ishmail Eken Usama Potrus Zoran Kisacanin David Padovan Representation: Counsel: Ms N Adams with Ms H Roberts (Crown) Mr P Dunn QC with Mr S Grant (Hawi) Mr J Stratton SC (Menzies) Mr J Trevallion (Abounader) Mr P Young SC (Eken) Mr R Driels (Potrus) Mr J Gordon (Kisacanin) Mr A Conwell (Padovan) Solicitors: Solicitor for Public Prosecutions (Crown) Sid Hawach & Co (Hawi) Hunter Flood Pty Limited (Menzies) Archbold Legal (Abounader) Purcell Felton Lawyers (Eken) Barakat Lawyers (Potrus) Elie Rahme & Associates (Kisacanin) Nyman Gibson Stewart (Padovan) File Number(s): 2009/50087 Judgment 1HIS HONOUR: After the close of the Crown case and in the course of consideration of no case to answer submissions made on behalf of the accused Kisacanin and the accused Padovan, the Crown Prosecutor has made an application for leave to amend the indictment in respect of the counts alleging the offence of riot. 2In relation to the accused Hawi, Menzies, Abounader, Eken, Potrus and Kisacanin, count 2 of the indictment is in the following terms: Further for that they, in the alternative, on 22 March 2009 at Mascot in the State of New South Wales, together with at least six other persons assembled together, used or threatened unlawful violence for a common purpose and the conduct of them taken together was such as would cause a person of reasonable firmness then being present at the scene to fear for his or her personal safety. (Emphasis added) 3In relation to the accused Padovan, count 4 is in these terms: For that he, on 22 March 2009 at Mascot in the State of New South Wales, together with at least 11 other persons assembled together, used or threatened unlawful violence for a common purpose and the conduct of them taken together was such as would cause a person of reasonable firmness then being present at the scene to fear for his or her personal safety. (Emphasis added) 4Mr Gordon, on behalf of the accused Kisacanin, has raised a point that a person can only be guilty of the offence of riot if it is established that the person used unlawful violence and not if it is only established that the person threatened such violence. The Crown now accepts that to be the case and proposes to amend counts 2 and 4 of the indictment to remedy the defective averment. 5The statutory offence of riot was enacted in 1988 by the insertion of s 93B in the Crimes Act 1900. The section is in the following terms: 93B Riot (1) Where 12 or more persons who are present together use or threaten unlawful violence for a common purpose and the conduct of them (taken together) is such as would cause a person of reasonable firmness present at the scene to fear for his or her personal safety, each of the persons using unlawful violence for the common purpose is guilty of riot and liable to imprisonment for 15 years. (2) It is immaterial whether or not the 12 or more persons use or threaten unlawful violence simultaneously. (3) The common purpose may be inferred from conduct. (4) No person of reasonable firmness need actually be, or be likely to be, present at the scene. (5) Riot may be committed in private as well as in public places. (Emphasis added) 6My initial view was that the first part of s 93B(1) simply states the context in which the conduct must occur. The words I have italicised that immediately follow state the conduct that renders a person liable for the offence. 7If "threatening unlawful violence" was sufficient for riot, then it would have been a simple matter for that to be stated, just as it was only a few months earlier when the offence of violent disorder was inserted in the Summary Offences Act 1988 (now in s 11A). That provision, relevantly, is: 11A Violent disorder (1) If 3 or more persons who are present together use or threaten unlawful violence and the conduct of them (taken together) is such as would cause a person of reasonable firmness present at the scene to fear for his or her personal safety, each of the persons using or threatening unlawful violence is guilty of an offence. Maximum penalty: 10 penalty units or imprisonment for 6 months. (Emphasis added) 8I had cause to question my initial view when I considered statements as to the elements of the offence from some very respectable sources. 9In Regina v Asquith (1994) 72 A Crim R 250, Hunt CJ at CL said at 251: The first of the grounds of appeal argued by the appellant is that the judge misdirected the jury as to the elements of the offence of the riot. The offence is enacted by s 93B(1) of the Crimes Act 1900. The Crown has to establish: (1) that the appellant was one of 12 or more persons - (a) who were present together, and (b) who did use or threaten unlawful violence for a common purpose, and (2) that the conduct of those persons would cause a person of reasonable firmness at the scene to fear for his or her personal safety. (Emphasis added) 10This, however, is obiter dictum, because the Crown in that case alleged only the "use" of unlawful violence. The issue on appeal was whether the trial judge misdirected the jury by failing to direct that they must find that 12 or more people used such violence. The trial had been conducted on the sole issue of whether the appellant was one of those who did. No issue was taken with respect to whether there was in fact a riot. Leave pursuant to r 4 of the Criminal Appeal Rules was refused. 11In Howie and Johnson, Criminal Practice and Procedure NSW , Butterworths, it is said at [27-20,005] that the elements of the offence of riot in s 93B are: (1) 12 or more persons were present together; and (2) used or threatened to use unlawful violence for a common purpose; and (3) their conduct taken together was such that it would cause a person of reasonable firmness present at the scene to fear for his/her personal safety; and (4) the accused was one of those present who used or threatened to use the unlawful violence for a common purpose. (Emphasis added) 12The suggested form of the indictment in Howie and Johnson is: [27-20,000] Form of indictment That [ name of accused ] on [ date of alleged offence ] at [ locality/suburb ] in the State of New South Wales, together with [ name of other rioters - if names not known, aver "and other persons not known" ] being [ x or at least 12 ]* in number assembled together and used/threatened to use unlawful violence for a common purpose, namely [ describe briefly the facts relied upon eg to obtain the release of Joe Green from police custody ] such as to cause a person of reasonable firmness then being present at the scene to fear for his/her personal safety. (Emphasis added) 13Regina v Aaron John Lee Maher; Regina v Dwayne Eric Welsh; Regina v Craig Vincent Lardner; Regina v Ronald Priestly [2005] NSWCCA 16; (2005) 154 A Crim R 457 , involved a two judge bench of the Court of Criminal Appeal dealing with an appeal against the severity of sentence. Dunford J (Kirby J agreeing) referred, again obiter, to the elements of the offence of riot as being: [32] ... Section 93B (riot) involves: (a) 12 or more persons present together, (b) the use or threat of unlawful violence, (c) a common purpose, and (d) conduct such as to cause a person of reasonable firmness to fear for his personal safety ... 14However, against those statements that the elements of the offence may include that the accused threatened unlawful violence, there is the following. 15In Watson, Blackmore and Hosking, Criminal Law New South Wales , LBC Information Services, 2 nd ed, Vol 2, the elements of the offence are said to be: [2.15070] Elements of riot The prosecution must prove that: (1) the accused was one of 12 or more people - (a) who were present together at a place (public or private), and (b)who used or threatened unlawful violence for a common purpose, and (2) that the conduct of these people (taken together) was such as would cause a person of reasonable firmness present at the scene to fear for his or her personal safety, and (3) that the accused in fact used unlawful violence for the common purpose. (Emphasis added) 16The suggested form of indictment is: [2.15050] Indictment for riot That AB [CD and EF] on the day of [date] at [place] in the State of New South Wales being one of 12 or more persons present together in a riotous assembly, using [and threatening] unlawful violence for a common purpose namely, [particulars], did use unlawful violence for the said common purpose by [eg assaulting members of the public] and the said conduct of all such said persons (taken together) was such as would cause a person of reasonable firmness present at the scene to fear for his or her personal safety. (Emphasis added) 17Section 93B was inserted in the principal Act by the Crimes (Amendment) Act 1988. The common law offence of riot was abolished. Section 93B has been in the same form since then (apart from an increase in the maximum penalty from 10 years to 15 years in 2005). 18In respect of the Crimes (Amendment) Act 1988, reference was made in the second reading speech of the then Attorney General to the position in the United Kingdom where the common law offence of riot had been abolished and replaced by a statutory offence in s 1 of the Public Order Act 1986 (UK): New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 19 October 1988 at 2600. Section 93B is in identical terms to that provision (apart from s 93B using gender neutral language and including within it a statement of the maximum penalty). 19In Colosimo and Ors v Director of Public Prosecutions (NSW) [2005] NSWSC 854, Johnson J was concerned with the history and construction of the statutory offence of affray in s 93C. It was inserted in the principal Act also by the Crimes (Amendment) Act 1988. Johnson J referred to the second reading speech before observing: [14] The Attorney-General's reference to the United Kingdom reforms contained in the Public Order Act 1986 (UK) is significant. As will be seen, the statutory offence of affray created in New South Wales in 1988 follows very closely the equivalent provisions in the Public Order Act 1986 (UK) . In these circumstances, authorities concerning the proper construction of the United Kingdom provisions will assist in the construction of the New South Wales provisions. 20For the same reason, authorities concerning the proper construction of the riot provisions in the Public Order Act (UK) may assist in the construction of s 93B. 21In R v Jefferson [1994] 1 All ER 270, two appellants had been convicted on a count of riot which was particularised as follows: [The named defendants] on the 21 st day of June 1990 being present together and with other persons unknown, the total number of whom were twelve or more, used or threatened unlawful violence for a common purpose and the conduct of them (taken together) was such as would cause a person of reasonable firmness present at the scene to fear for his personal safety. 22The wording of this count is virtually identical to the wording of the counts of riot in the indictment presented by the Crown in the present trial insofar as the essential elements of the offence are concerned. 23It was accepted in Jefferson that the indictment was badly framed. It averred the context in which criminal liability might arise, but omitted the act by which the accused was said to be criminally liable. Notwithstanding this, the appeal was dismissed. Auld J accepted a Crown submission (at 277) that the trial judge had nonetheless "directed the jury properly on the essential issues that they had to decide". It was, however, noted (at 275): As this court has recently observed in R v Tyler (1992) 96 Cr App R 332, this provision has two parts. The first specifies the context, namely 'Where 12 or more persons who are present together use or threaten unlawful violence for a common purpose ...' The context of the offence thus provides, as an alternative to the use of unlawful violence, a threat of such violence. The second part of the section specifies the actual offence, namely 'each of the persons using unlawful violence for the common purpose is guilty of riot'. The offence, so described, thus does not include the threat of unlawful violence as an alternative to its use. An indictment charging an offence under s 1(1) of the 1986 Act should reflect the two parts of the provision, first stating the statutory context and second the commission, within that context, of the offence as defined. 24The trial judge in Jefferson had the defect drawn to his attention but declined a bipartisan application to permit amendment. In R v Tyler (1993) 96 Cr App R 332, there was an indictment particularising the offence in the same terms but the trial judge did permit amendment. The contention on appeal that the indictment was fundamentally defective and incapable of amendment, because it alleged an offence unknown to the law and was therefore a nullity, was rejected. 25These English authorities reflect, in my respectful view, the correct construction of a provision in the identical statutory expression as that of the offence of riot in s 93B of the Crimes Act 1900. It is now common ground that the indictment in the present case is defective in the same manner as the indictments in Tyler and Jefferson were held to be. 26Amendment of the indictment to rectify such a defect is permitted by ss 20 and 21 of the Criminal Procedure Act 1986. Leave of the court is required unless the accused consent: s 20(1). 27Leave should be granted unless the accused would be irreparably prejudiced in meeting the charge as amended. In James Borodin v R; Irene Borodin v R; ED v R; Bogomiagkou v R [2006] NSWCCA 83, Howie J stated: [25] Section 21 of the Criminal Procedure Act permits the court to make orders for amendment of an indictment where to do so would not result in injustice. Relevant injustice does not arise simply because the amendment of the charge deprives the accused of taking a technical point based upon an inconsistency between the statement of the charge and the evidence in support of it. Tactical decisions may have been made by the defence upon the basis of the wording of the charge, but it does not follow that the trial judge should refuse leave to amend the indictment simply because those tactical decisions will be rendered fruitless. It will only be in a case where the accused would be irreparably prejudiced in meeting the charge as amended that leave should be refused. 28No counsel has objected to the proposed amendment and it has not been suggested that prejudice would be occasioned to any of the accused. 29In the circumstances it is appropriate to grant leave for the indictment to be amended as proposed. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 13 February 2012