Hoblos v The Queen [2014] HCATrans 234 (17 October 2014)

Last Updated: 22 October 2014

[2014] HCATrans 234

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S124 of 2014

B e t w e e n -

MOHAMMED HOBLOS

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

CRENNAN J
KEANE J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 17 OCTOBER 2014, AT 11.16 AM

Copyright in the High Court of Australia

MR T.A. GAME, SC: If the Court please, I appear for the applicant with MS J.L. ROY. (instructed by Zahr and Zahr Lawyers)

MR J.H. PICKERING, SC: I appear for the respondent, your Honour. (instructed by Director of Public Prosecutions (NSW))

CRENNAN J: Yes, Mr Game.

MR GAME: If the Court pleases. We need an extension of time, which I understand is not opposed.

CRENNAN J: Yes, you have that.

MR GAME: Thank you. The two points we wish to make are fairly short and I come to them this way. In this case there was evidence of admission of what might be described as involvement and there was evidence of some kind of preconcert with a person called El-Hage, although there was nothing that pointed specifically to what may have been done with El-Hage, and there was a great deal of emphasis on that preconcert. But that preconcert did not really prove anything in respect of the crime that was actually charged, which was a joint criminal enterprise between three people.

That part of the case was kind of run completely separately, which was, there was identified a shooter, a person with the shooter, and a driver. The question was, and the way the Crown ran its case was, that those three people were guilty of murder, and that we were one of those three people. Our case was that involvement did not establish that we were a party to that joint criminal enterprise. The point that was developed in the Court of Criminal Appeal was that it had not been established in any event that the driver was a party to such a joint criminal enterprise.

CRENNAN J: So your point as I took it was that the Court of Criminal Appeal treated presence and participation as unnecessary for the joint criminal enterprise.

MR GAME: That is right. So if you come to the end of the Court of Criminal Appeal’s judgment - and the end of the judgment is pages 87 and 88 - it is paragraph 119. So what you have got with - it says:

The driver delivered the two intruders to the vicinity of the party.

That is the paragraph, and it said - now, if you are looking for a joint criminal enterprise, you can – and it is clear from cases such as Osland and Huynh, which is the most recent, and in two paragraphs states the principles accurately and we accept them – but you can establish agreement by presence and participation and sometimes you can establish participation by presence, which comes from Tangye.

But in this case in respect of the driver, the very high point of the case is you have the driver, shall I say – there is a witness called Farah who says they came out, walked in the direction of the car, got in the car and left and that is the evidence. But there is no evidence that the driver is a party to any joint criminal enterprise to murder. There might conceivably be a case of extended joint criminal enterprise and there might conceivably be a case of accessory after. But when one talks about - - -

CRENNAN J: What the Court of Appeal referred to was “telling pieces of evidence”, and this is at 86, paragraph 109 - - -

MR GAME: Yes, your Honour. Yes, those telling pieces of evidence, yes – sorry, did I interrupt you?

CRENNAN J: No, not at all. I am just raising that - - -

MR GAME: I have to confront that, but the point is this. What is being sought to be made is the connection between admissions of involvement and this joint criminal enterprise. So how does that admission of involvement get you into that position? I know this sounds kind of facetious, but - - -

KEANE J: Well, the effect of the admissions was a matter for the jury, and the jury plainly took them – took the admissions of involvement, “I was involved in a murder” – as indicating that he was knowingly involved in the murder.

MR GAME: Yes, that still does not make him - - -

KEANE J: Particularly given that he expected a life sentence for his involvement.

MR GAME: Quite, your Honour, but at that stage, his concerns are about the phone records with El-Hage. So his concern is about his connection to El-Hage, not to these three - - -

KEANE J: If you are trying to limit the effect of the admissions, is that not something that is for the jury, or on review by the Court of Criminal Appeal, which we are not?

MR GAME: No, I understand that, but the point I am – if I do not get to the point, well I have to live with that – but the point I am trying to make is – and I know it sounds facetious, but an admission of involvement in a situation where we have 150 to 200 people at a party and a good number of them seem to know what is going on, and a good number of them – a really good number of them – set off the second this thing takes place. It is not your ordinary kind of party. It is not a remote house with three people arriving. It is 200 people at an occasion where a lot of people know that something is about to happen. My point is – and I say the two points are an admission of involvement does not get you to being one of these three people.

KEANE J: Does it not depend upon the effect of the admission? The admissions were such that they could be taken by the jury, as they plainly were, as admissions of knowing involvement, full knowing involvement. They were unqualified. There was no suggestion that, “I was involved in it, but gee, I was only the driver”. There is no qualification or limitation on it. They are unqualified admissions of involvement which indicate, and which include an indication of an expectation of a life sentence. Now, in those circumstances, why was it not for the jury to decide whether that is what they meant or not?

MR GAME: Well, your Honour, my answer to that might sound unsatisfactory, but it is this. An admission of involvement and a fear of a very long sentence is made at a time when he has no knowledge of what is, shall I say, the case that is being put. The only knowledge he has is that they were onto El-Hage’s phone records. Now – I was about to say before, this sounds facetious, but I am going to put it anyway – he could have been the lookout, he could have been the supervisor, he could have enticed the people to go there – he could have done any number of other things that might not have been an agreement to shoot, but highly inculpatory involving the deceased or the phone records.

So when he makes those admissions, there is nothing that connects those admissions with the case that is being put. It needs to be understood that the case that is being put in a sense has got no – the case that is being put is defined by what is known objectively about the circumstances of the offence. It is not defined by those admissions. What the Crown is trying to do is make the connection between the two.

The Crown quite separately says “and those three people are guilty of murder”. That is, again, quite separately from the admission. The Crown was not trying to build up the culpability of the driver, shall I say, by the admission. It was not done that – so then they say, well, how do you prove the driver is guilty? Well, he must have known what they were up to. The reason why the driver became significant was that there were – again, it does not matter for the purposes of this argument – but there were things that pointed away from the applicant being the shooter or his assistant, and

it does not matter for present purposes about that, but that is why you focus attention – turn to the driver.

But how could one – in the way in which this case was put, it was – I do not think I am overstating it – but it was essential that liability of the driver be established. We say liability independently of the admissions, how could that be when we know nothing at all about the circumstances of the driver except for the fact that the car was driven away at speed. That, your Honour, pushes joint criminal enterprise beyond proving agreement by presence and participation, and that is the point that we wish to get to if we can. So there are two points. The second one is the point that we say is a point that warrants a grant. Those are our submissions, if the Court pleases.

CRENNAN J: Justice Keane will deliver the Court’s decision.

KEANE J: We do not need to trouble Mr Crown.

The applicant was convicted of murder for his part in the execution-style killing of the deceased by two masked perpetrators. While the evidence did not permit the applicant to be identified as the man who fired the fatal shots, the Court of Criminal Appeal on review of the evidence was left in no doubt that the applicant was a party to the joint criminal enterprise to kill the deceased. Significantly, the evidence included admissions of his involvement in the killing and his expectation that that involvement warranted a sentence of life imprisonment.

In these circumstances, the case does not provide a suitable vehicle for consideration of the issues said to warrant the grant of special leave, namely, that, where the only evidence of the joint criminal enterprise was the commission of the offence itself, can a person who was not physically present for its commission be found guilty of the murder?

In any event, the prospects of success on appeal are not sufficient to warrant the grant of special leave to appeal. The application should be refused.

AT 11.26 AM THE MATTER WAS CONCLUDED