R v Hawi - [2014] NSWSC 837

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: R v Hawi [2014] NSWSC 837
Hearing dates: 19 June 2014
Decision date: 23 June 2014
Before: Harrison J
Decision:
1. Grant bail subject to conditions.
2. Grant liberty to apply on 24 hours' notice.
3. Direct that an unredacted form of this judgment is not to be published, other than to the Attorney General, until further order.

Catchwords: BAIL - applicant awaiting re-trial following successful appeal to Court of Criminal Appeal - where applicant effectively in pre-trial custody since 15 November 2012 - where new date for trial unlikely before February 2015 - whether unacceptable risks identified - whether identified risks capable of mitigation by imposition of appropriate conditions
Legislation Cited: Bail Act 2013
Bail Act 1977 (Vic)
Cases Cited: Hawi v R [2014] NSWCCA 83
R v Hawi [2012] NSWSC 332
Woods v DPP [2014] VSC 1
Category: Interlocutory applications
Parties: Mahmoud Hawi (Applicant)
Crown (Respondent)
Representation: Counsel:
B Walker SC and G Bashir (Applicant)
H Roberts (Respondent)
Solicitors:
AHA Taylor Lawyers (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2014/159783, 2009/50087, 2009/52582
Publication restriction: There are no restrictions upon publication of the redacted form of this judgment

Judgment

HIS HONOUR: Mahmoud Hawi applies for bail.

Background

On 22 March 2009 Anthony Zervas was killed during a brawl at Sydney Airport. Two rival motorcycle gangs were involved. They were the Hells Angels and the Comancheros. Mr Hawi was at that time the President of the Comancheros. Mr Zervas was not a member of the Hells Angels but his brother was. Mr Hawi was present and became involved in the fighting.

Mr Hawi was arrested on 6 April 2009 and charged with affray. He was refused bail. Latham J granted bail on 15 May 2009.

Mr Hawi was subsequently charged with murder on 30 June 2009. He was refused bail on that charge and has remained in custody since then.

A trial of Mr Hawi and five others commenced at Parramatta on 24 May 2011 before R A Hulme J. On 2 November 2011 the jury found Mr Hawi guilty of murder and guilty of affray. None of the other accused was found guilty of murder. His Honour sentenced Mr Hawi on 10 April 2012: R v Hawi [2012] NSWSC 332. Mr Hawi was sentenced to a fixed term of imprisonment of 3 years and 6 months to date from 16 May 2009 expiring on 15 November 2012 for the affray. He was sentenced to a non-parole period of imprisonment for the murder of 21 years and a balance of term of 7 years to date from 16 November 2009.

Mr Hawi appealed against his conviction for murder to the Court of Criminal Appeal. That Court published its reasons for judgment on 16 May 2014: Hawi v R [2014] NSWCCA 83. The Court allowed the appeal, set aside the conviction and ordered a new trial. The Chief Justice would have directed the entry of a verdict…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Hawi

Details

AGLC: R v Hawi [2014] NSWSC 837
Case: [2014] NSWSC 837
Decision Date: 23 June 2014

CaseChat Overview and Summary

The case of R v Hawi involved the applicant, who was awaiting re-trial following a successful appeal to the Court of Criminal Appeal. The applicant had been in pre-trial custody since 15 November 2012 and the new trial was unlikely to commence before February 2015. The central issue before the court was whether any unacceptable risks had been identified and, if so, whether these risks could be mitigated by the imposition of appropriate bail conditions. The applicant sought to be released on bail pending the re-trial.

The court examined the nature of the alleged offences, which included serious criminal charges. The applicant had already spent a significant period in custody, which raised concerns about the potential for prejudice to the applicant if the trial was further delayed. The court also considered the risk of re-offending and the risk to the community. The applicant argued that the length of time spent in custody and the absence of any new evidence suggested that the risk of re-offending was minimal. The prosecution, however, contended that the serious nature of the charges warranted continued detention to ensure public safety and to prevent any potential re-offending.

After carefully weighing the arguments and evidence presented, the court determined that the risks associated with the applicant's release on bail were not unacceptably high. The court found that appropriate conditions could be imposed to mitigate any identified risks. These conditions included restrictions on the applicant's movements, regular reporting requirements, and electronic monitoring. The court concluded that the applicant's continued detention was not necessary and granted bail with the specified conditions. The court emphasised the importance of balancing the rights of the applicant with the need to protect the community.

The final orders of the court included the release of the applicant on bail, subject to the conditions outlined in the judgment. The applicant was to comply with all specified conditions until the conclusion of the re-trial. The court also directed that the applicant's trial should proceed as soon as practicable, but no later than the date set in the judgment.

Orders