Supreme Court New South Wales Medium Neutral Citation: R v Abdollahi (No 12) [2013] NSWSC 485 Hearing dates: 8 April 2013 Decision date: 11 April 2013 Jurisdiction: Common Law - Criminal Before: R A Hulme J Decision: Application for order that Crown make election so as to avoid duplicity refused Catchwords: CRIMINAL LAW - procedure - duplicity in indictment - whether legislation prohibiting riot and affray creates more than one offence for each - no duplicity Legislation Cited: Crimes Act 1900 (NSW) Crimes Amendment Act 1988 (NSW) Public Order Act 1986 (UK) Cases Cited: Colosimo and Ors v Director of Public Prosecutions (NSW) [2005] NSWSC 854; (2005) 64 NSWLR 645 I v Director of Public Prosecutions [2001] UKHL 10; [2002] 1 AC 285 R v Jefferson [1994] 1 All ER 270 R v Hawi (No 18) [2011] NSWSC 1664 R v Smith [1997] 1 Cr App R 14 R v Tyler (1993) 96 Cr App R 332 S v The Queen [1989] HCA 66; (1989) 168 CLR 266 Walsh v Tattersall [1996] HCA 26; (1996) 188 CLR 77 Texts Cited: Archbold, Pleading, Evidence and Practice in Criminal Cases Blackstone's Criminal Practice Law Commission, Offences Relating to Public Order (Law Com No 123) Category: Procedural and other rulings Parties: Regina Ali Abdollahi Haider Hussein Ali Mohammed Naim Amiri Amir Manafi Bejoushin Taleb Feili Ali Haidari Majid Parhizkar Kamelledin Shahsawari Medhi Viasi Representation: Counsel: Mr G Farmer SC with Ms J Single (Crown) Mr C Smith (Abdollahi) Mr M Paish (Ali) Mr J O'Sullivan (Amiri) Mr R Jankowski (Bejoushin) Mr W Flynn (Feili) Mr R Pontello (Haidari) Mr D Marr (Parhizkar) Mr P Little (Shahsawari) Mr A Webb (Viasi) Solicitors: Commonwealth Director of Public Prosecutions Watsons Solicitors & Barristers Archbold Legal CBD Criminal Defence Lawyers Blair Criminal Lawyers L David Lock File Number(s): 2011/219556 Judgment 1HIS HONOUR: Mr Little, counsel for the accused Shahsawari, has made a submission that the counts in the indictment of riot and affray are bad for duplicity. An order is sought requiring the Crown to elect as to which of two elements it is relying upon in respect of each charge. The late raising of the issue 2Mr Shahsawari was arraigned and pleaded not guilty to those counts on 17 August 2012. Pre-trial hearings of various evidentiary issues commenced on 29 January 2013. Mr Shahsawari was re-arraigned in the presence of a jury panel on 11 February 2013 and again pleaded not guilty. The trial proceeded to a point midway through the second-last of ten closing addresses by counsel when Mr Little raised this issue last Friday, 5 April 2013. 3A written outline of submissions was provided. I expressed concern about the lack of authority cited and, in the event there was nothing directly on point, the lack of any reference to relevant general principles. Further written submissions were provided over the weekend. The Crown provided written submissions in response. Mr Little made brief oral submissions in response to the Crown. 4None of counsel for the other accused have sought to join in or support the point raised by Mr Little. 5Some members of the jury were unavailable on Tuesday and Wednesday (for reasons presently irrelevant) so that the conclusion of my summing up, which commenced on Monday 8 April, was deferred until today. This has allowed me to consider Mr Little's point with less haste. The duplicity alleged 6Riot and affray became statutory offences when ss 93B and 93C were inserted in the Crimes Act 1900 (NSW) by the Crimes Amendment Act 1988 (NSW). The provisions are currently 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. 93C Affray (1) A person who uses or threatens unlawful violence towards another and whose conduct is such as would cause a person of reasonable firmness present at the scene to fear for his or her personal safety is guilty of affray and liable to imprisonment for 10 years. (2) If 2 or more persons use or threaten the unlawful violence, it is the conduct of them taken together that must be considered for the purposes of subsection (1). (3) For the purposes of this section, a threat cannot be made by the use of words alone. (4) No person of reasonable firmness need actually be, or be likely to be, present at the scene. (5) Affray may be committed in private as well as in public places. 7The italicised words in s 93B(1) and s 93C(1) are at the heart of Mr Little's argument. He contends that the sections each create two offences. In s 93B, the offences are said to be "Where 12 or more persons who are present together use unlawful violence" and "Where 12 or more persons who are present together threaten unlawful violence". In s 93C the offences are said to be where "A person uses unlawful violence towards another" or where "A person threatens unlawful violence towards another". 8Mr Little cited S v The Queen [1989] HCA 66; (1989) 168 CLR 266 and Walsh v Tattersall [1996] HCA 26; (1996) 188 CLR 77 as authority for the proposition, derived in each case from Archbold, Pleading, Evidence and Practice in Criminal Cases, that "no one count of the indictment should charge the defendant with having committed two or more separate offences". So much may be accepted. The charge of riot 9R v Tyler (1993) 96 Cr App R 332 was suggested to be directly on point in relation to the offence of riot. Regrettably it has been misread, misunderstood, or both. 10The English offence of riot in s 1(1) of the Public Order Act 1986 (UK) is in identical terms to s 93B (aside from the latter using gender-neutral language and including a statement as to the maximum penalty). In R v Tyler the indictment alleged that the accused, as well as the others who made up the "12 or more persons" had "used or threatened unlawful violence". Farquharson LJ, giving judgment for the Court of Appeal, held (at 335): It will be seen that the indictment preferred in this case is at the very least defective. For a person to be guilty of riot it must be proved that he or she used unlawful violence for the common purpose. The particulars of the offence are cast in wider terms in the indictment, alleging that the accused "used or threatened" unlawful violence. The words "used or threatened" appear in the subsection but in the context of the behaviour of the 12 or more persons. 11In R v Hawi (No 18) [2011] NSWSC 1664, I granted leave to amend an indictment that erroneously averred a count of riot in a similar fashion to that in R v Tyler. In the course of that judgment I referred to R v Jefferson [1994] 1 All ER 270 which, if there be any doubt about what R v Tyler stands for, makes it patently clear where Auld J said (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. (Emphasis added). 12There is no suggestion in either of those cases of there being any question of s 1(1) creating two offences. Even though the indictments in each case were regarded as defective, duplicity was not raised as an issue at all. Clearly, a single offence was created by the statutory provision; that within a context of "12 or more persons who are present together use or threaten unlawful violence for a common purpose" a person "used unlawful violence for the common purpose". 13The indictment in the present case avers the offence of riot in the following terms: Between 20 April 2001 and 22 April 2001, at Villawood in the State of New South Wales, 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 and the conduct of the twelve or more persons taken together was such as would cause a person of reasonable firmness then being present at the scene to fear for his/her personal safety. 14This is entirely in conformity with R v Tyler and R v Jefferson. A single offence is charged. There is no duplicity. The charge of affray 15Mr Little cited no authority in support of his contention that the count of affray was bad for duplicity, or that s 93C creates two offences. 16The Public Order Act (UK) provides for an offence of affray in s 3. The offence in s 93C of the Crimes Act (NSW) is based upon it: see Colosimo and Ors v Director of Public Prosecutions (NSW) [2005] NSWSC 854; (2005) 64 NSWLR 645, per Johnson J at [11] - [14]. 17Mr Little made reference to a suggested form of pleading an offence of affray in Blackstone's Criminal Practice (a photocopy was provided but the edition was not cited): A on or about the ... day of ... used [or threatened] violence towards one V, the conduct of A being such as to cause a person of reasonable firmness present at the scene to fear for his personal safety. 18I do not regard that suggested form of pleading as authority for the proposition that "it is clear ... that the English position is" that "used" and "threatened" are separate and distinct elements of the offence of affray: Mr Little's written submissions of 6 April 2013 at p.2. 19In relation to the offence of riot, the suggested form of pleading includes in relation to the "12 or more persons" that they were "using [or threatening] unlawful violence". The submission that this means that "it is clear ... that the English position is" that "using unlawful violence" and "threatening unlawful violence" are separate and distinct elements of the offence of riot is clearly wrong, having regard to R v Tyler and R v Jefferson. Whilst highly respected, Blackstone, if its suggested pleadings are intended to convey what Mr Little asserted, cannot prevail over the Court of Appeal. 20In Colosimo & Ors v DPP (NSW), Johnson J referred (at [14]) to the New South Wales Parliament, in enacting s 93C (and s 93B), having very closely followed the equivalent provisions in the Public Order Act (UK). For this reason he considered the authorities in that jurisdiction as being of assistance in the construction of the New South Wales provisions. They included I v Director of Public Prosecutions [2001] UKHL 10; [2002] 1 AC 285 where Hutton LJ said at [17]: The offence of affray, both at common law and now under statute, was primarily intended to punish a person or persons who engaged in a face to face confrontation where violence was used or threatened and where reasonably firm-minded members of the public would be put in fear. As Lord Bingham of Cornhill CJ said in R v Smith (Christopher) [1997] 1 Cr App R 14, 17: "It typically involves a group of people who may well be shouting, struggling, threatening, waving weapons, throwing objects, exchanging and threatening blows and so on". 21After extensively quoting from a 1983 report of the Law Commission, Offences Relating to Public Order (Law Com No 123), Hutton LJ continued at [24]: Therefore it is apparent that the Law Commission and Parliament intended that the offence set out in section 3 should penalise those who engage in a fight, whether they are landing blows, or attempting to land blows, or threatening to land blows ... . 22The Law Commission had initially considered that a statutory offence of affray should be confined to the actual use of violence and exclude threatened violence. However, it was persuaded to change that view upon a consideration of a number of factual situations, including the following quoted in the judgment of Hutton LJ at [23]: [I]t has been urged on us that there is no reason of substance why, in this context, a punch thrown which misses should be distinguished from one which lands on another person; and, if there were insufficient evidence to show that any of those accused actually succeeded in hitting another, no one, upon our provisional proposal, would have been guilty of the offence ... . 23Throughout the judgment of Hutton LJ there are references to "the offence" of affray. There is no suggestion that s 3 of the Public Order Act (UK) created two offences. For example, his Lordship concluded his judgment at [28] thus: The present case demonstrates that a person should not be charged with the offence unless he uses or threatens unlawful violence towards another person actually present at the scene and his conduct is such as would cause fear to a notional bystander of reasonable firmness. (Emphasis added). 24In R v Smith [1997] 1 Cr App R 14 at 17, Bingham LCJ provided the following general description of the offence of affray: [The offence of affray] typically involves a group of people who may well be shouting, struggling, threatening, waving weapons, throwing objects, exchanging and threatening blows and so on. Again, typically it involves a continuous course of conduct, the criminal character of which depends on the general nature and effect of the conduct as a whole and not on particular incidents and events which may take place in the course of it. Where reliance is placed on such a continuous course of conduct it is not necessary for the Crown to identify and prove particular incidents. To require such proof would deprive section 3(1) of the 1986 Act of its intended effect, and deprive law-abiding citizens of the protection which this provision intends that they should enjoy. It would be asking the impossible to require a jury of 12 men and women to be satisfied beyond reasonable doubt that each or any incident in an indiscriminate melee such as constitutes the typical affray was proved to the requisite standard. 25The reasoning of the Law Commission as quoted by Hutton LJ in I v Director of Public Prosecutions is consistent with that of Bingham LCJ in R v Smith and that of Johnson J in Colosimo & Ors v DPP (NSW). Following his extensive review of the history and the authorities concerning the offence of affray, Johnson J said at [89]: In some cases of affray, of course, where two or three persons only may be involved, identification of the particular acts of individual persons may be easier. However, the fact that such identification of individual acts may not be available where a larger number of persons are involved in a fluid brawl or melee does not mean that persons involved in such an incident cannot be convicted of the offence of affray. It is necessary to bear in mind the elements of the offence under s 93C of the Act. In my view, those elements may be satisfied where a finding is open that persons charged with affray have engaged in lawful violence even if the specific acts committed by each individual cannot be precisely identified. ... 26This, in my view, strongly supports the proposition that it is a single element of the offence of affray that a person used or threatened unlawful violence. To hold otherwise would be, to adapt the words of Bingham LCJ, to deprive s 93C of its intended effect. 27The indictment in the present case avers in respect of Mr Shahsawari a count of affray in these terms: On 20 April 2011, at Villawood in the State of New South Wales, did use or threaten unlawful violence towards Serco staff and other people at the Villawood Detention Centre and such conduct would cause a person of reasonable firmness then being present to fear for his/her personal safety. 28The count is framed in accordance with s 93C. I am persuaded that the section contains only a single offence. There is no duplicity. The sole issue is asserted duplicity 29Finally, I note that it was no part of Mr Little's argument that there is any uncertainty in the case that the Crown has presented to the jury against Mr Shahsawari. The Crown has precisely identified his alleged acts upon which it relies and there has been no complaint of there being any doubt as to the case that the accused has been required to meet. There has been no suggestion that there is any prejudice or embarrassment to the accused in the manner in which the Crown case has been framed and in the particulars that have been given, and no suggestion that there would be any lack of certainty in what a verdict of guilty would entail the jury having been satisfied of beyond reasonable doubt. Conclusion 30The application for an order requiring the Crown to make an election to avoid duplicity in the charges of riot and affray is refused. ********** 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: 02 May 2013