Hawthorn & Anor, R. v

Factual and Procedural Background

At a joint trial, Applicant 1 was convicted of murder, robbery, assault occasioning actual bodily harm, two counts of attempted grievous bodily harm with intent, and one count of causing grievous bodily harm with intent, and was sentenced to life imprisonment with a minimum term of 33 years less time spent on remand. Applicant 2 was convicted of murder and robbery and was sentenced to life imprisonment with a minimum term of 22 years less 272 days spent on remand. [Para 29][Para 30]

The defendants’ co-defendants were also convicted, and Applicant 1 and Applicant 2 each brought renewed applications for permission to appeal after refusal by the single judge; Applicant 1 also sought an extension of time for his sentence appeal. [Para 31][Para 32]

The case arose from four ammonia attacks in the Newcastle area over 12 days in August 2023, the last of which caused the death of the deceased victim; the judge accepted that the violence arose from Applicant 1’s attempt to tax other drug dealers by stealing drugs and deterring competition. [Para 36][Para 37]

Legal Issues Presented

1. Whether hearsay evidence from two witnesses about Applicant 1’s earlier assault on the deceased victim was admissible under section 116 of the Criminal Justice Act 2003, and whether adequate safeguards existed. [Para 49][Para 59][Para 67]
2. Whether the trial judge should have given a “departure direction” on Applicant 1’s liability for the later attacks and the murder, if the principal offenders departed from any agreed plan. [Para 50][Para 95][Para 106]
3. Whether Applicant 1’s 33-year minimum term was manifestly excessive, and whether his application for an extension of time should be allowed. [Para 119][Para 125][Para 126]
4. Whether there was a case to answer against Applicant 2 on the murder and robbery counts based on the phone evidence, and whether his 22-year minimum term was excessive. [Para 142][Para 147][Para 158][Para 194]

Arguments of the Parties

Applicant 1's Arguments

• The hearsay evidence should not have been admitted because it came from the deceased victim, who was said to be unreliable, and it was said to be the sole or decisive evidence on count 3. [Para 59]
• The jury should have been directed that if the principal offenders departed from the plan, Applicant 1 was not guilty on the later counts. [Para 50][Para 105]
• The sentence appeal argued that the judge had wrongly characterized the case as drug taxings without hard evidence and should have taken a more flexible and lenient approach. [Para 125]

The Crown's Position

• The hearsay evidence was admissible because the deceased victim was dead, the source was identified, the accounts were corroborated by photographs and by each other, and the statutory safeguards were satisfied. [Para 60][Para 66][Para 67]
• The judge’s directions on joint participation and intent were factually tailored and legally correct, so no separate departure direction was required. [Para 101][Para 107][Para 113]
• The 30-year starting point and the 33-year minimum term were justified by murder in the course of robbery, the planned campaign of violence, and the other serious attacks. [Para 119][Para 121][Para 129][Para 132]

Applicant 2's Arguments

• The phone calls and messages could equally have been innocent drug-dealing communications, so the case should not have been left to the jury. [Para 142][Para 147]
• Applicant 2 relied on his low-level role, youth, and intellectual limitations to argue that he was not the person driving the attack. [Para 139][Para 151]
• On sentence, it was argued that the judge should have started at 15 years rather than 30 years, and that the findings about drug taxings and Applicant 2 being the person Fawcett turned to were wrong. [Para 194][Para 195]

The Crown's Position

• The repeated, urgent communications before and after the murder were inconsistent with routine drug dealing and supported an inference that Applicant 2 was involved in coordinating the attack. [Para 145][Para 146][Para 164][Para 169][Para 177]
• The 30-year starting point was appropriate, and the reduction to 22 years already reflected substantial mitigation. [Para 189][Para 192][Para 202][Para 204]

Table of Precedents Cited

Court's Reasoning and Analysis

Applicant 1: Hearsay

The court upheld the admission of the hearsay evidence because the deceased victim was dead, the source of the account was identified, and the evidence was corroborated by photographs and by the mutually supporting statements of the two witnesses. [Para 60][Para 61][Para 62][Para 66][Para 83][Para 84]

The court also held that the material was supported by Applicant 1’s own defence statement, that there was no real dispute about the underlying facts, and that the absence of cross-examination or live evidence from the witnesses reinforced the point. [Para 69][Para 73][Para 74][Para 78][Para 85][Para 86][Para 87]

The procedural history of an earlier bad character application did not matter, because the issue actually decided was admissibility of the hearsay on count 3, and that application was properly determined. [Para 79][Para 92]

Applicant 1: Direction on Participation

The court rejected the complaint about a departure direction because the judge had directed the jury in clear, fact-specific terms that Applicant 1 must have intentionally instructed, assisted, or encouraged the ammonia attack, and must have intended death or really serious injury. [Para 99][Para 101][Para 103][Para 107][Para 111][Para 113]

On that basis, the court said there was no ambiguity and no need for a longer direction about secondary participation or departure from a pre-arranged plan. [Para 112][Para 113]

Applicant 1: Sentence

The court held that the judge was entitled to begin at the 30-year starting point for murder committed in the course of robbery under Schedule 21, and that the other attacks and the campaign of violence justified a minimum term above 30 years. [Para 119][Para 121][Para 128][Para 129]

The judge’s finding that the offending arose from drug dealing and taxings was supported by the evidence, including messages, images, cash, and the wider pattern of conduct. [Para 130][Para 131][Para 132]

The court therefore rejected the argument that the 33-year minimum term was manifestly excessive. [Para 136][Para 137]

Applicant 2: Conviction and Sentence

Applying the no-case authorities, the court held that the repeated calls and messages before and after the murder could properly be viewed together and were capable of supporting an inference of direct involvement in the attack. [Para 152][Para 153][Para 154][Para 157][Para 158][Para 159][Para 160][Para 161]

The court emphasized the timing, urgency, tone, and repetition of the communications, and held that they were much more consistent with the planning and aftermath of a major crime than with routine drug dealing. [Para 164][Para 165][Para 169][Para 170][Para 171][Para 177]

For sentence, the court held that the 30-year starting point was open to the judge, that the reduction to 22 years properly reflected mitigation, and that the result was not manifestly excessive. [Para 192][Para 196][Para 198][Para 199][Para 202][Para 203][Para 204][Para 207][Para 208]

Holding and Implications

ALL RENEWED APPLICATIONS WERE REFUSED. The court refused Applicant 1’s renewed applications for permission to appeal against conviction and sentence, refused his extension of time, and refused Applicant 2’s renewed applications for permission to appeal against conviction and sentence. [Para 210]

The direct consequence was that both applicants’ convictions and sentences remained undisturbed. [Para 210]