R v Hawi (No 21)

[2011] NSWSC 1667

Supreme Court

New South Wales

Medium Neutral Citation:	R v Hawi & ors (No 21) [2011] NSWSC 1667
Hearing dates:	23 August 2011
Decision date:	23 August 2011
Jurisdiction:	Common Law - Criminal
Before:	R A Hulme J
Decision:	Application to discharge jury refused
Catchwords:	CRIMINAL LAW - procedure - juries - discharge and excusing from attendance - prejudice to accused
Category:	Procedural and other rulings
Parties:	Regina Farres Abounader
Representation:	Counsel: Ms N Adams with Ms H Roberts (Crown) Mr J Trevallion (Accused) Solicitors: Solicitor for Public Prosecutions Archbold Legal
File Number(s):	2009/64354

Judgment

1. HIS HONOUR: Evidence has been given in the trial by Detective Sergeant Bruce Groenewegen that in 2009 the Comanchero Motorcycle Club had a number of rules. They included rule 1, "Any display of cowardice will not be tolerated".

1. The cross-examination yesterday of Mr Hawi by the Crown Prosecutor briefly touched upon these rules. The manner in which the accused Abounader was referred to in that context has given rise to Mr Trevallion making an application for the discharge of the jury.

1. The relevant passage of the cross-examination appears at transcript page 3812 at line 11:

Q. And as Road Captain you knew that Farres Abounader could be relied upon to follow club rules?

A. Yes, ma'am.

Q. Such as to not show cowardice?

A. Yes, ma'am.

1. No objection was taken to those questions or that evidence. The context was that the Crown Prosecutor was pressing Mr Hawi as to whether the position of "Road Captain" was one that carried with it any authority within the club. I perceive that from the Crown's point of view it was considered that Mr Hawi was downplaying the significance of that position. Mr Hawi said that it was not an important position (T3811.7) and that the occupant was "not in any position of authority" (T3811.22).

1. At the end of the proceedings yesterday afternoon, in the absence of the jury, Mr Trevallion raised a concern about the passage I have quoted above, but indicated a desire to reserve his position so that he could reconsider the matter overnight. The application to discharge the jury was made this morning.

1. It seems to me that the evidence does not advance the situation to any significant extent beyond the evidence that Mr Dunn QC adduced from Mr Hawi in his evidence in chief. To put what follows into context, it should be noted that there is evidence that Mr Abounader was a member of the Comanchero Motorcycle Club. Mr Hawi's evidence in chief included:

Q. In relation to the rules of the club, we've heard some evidence about the rules of the club; how long have the rules been around to your knowledge?

A. About 45, 46 years, since the start of the Comancheros.

Q. And are members expected to obey the club rules?

A. Yes, sir.

Q. Reference has been given to a rule to protect the President; are you familiar with that rule?

A. No, sir. (T3767) (Emphasis added)

1. There was no objection taken to that evidence either.

1. In relation to the third of those questions, it does not appear from my perusal of the transcript that there has been any reference to a rule concerning protection of the president but that is by the by for present purposes.

1. As I said, it seems to me that the evidence adduced in the evidence in chief of Mr Hawi by Mr Dunn can be regarded as being to similar effect as that which was adduced by the Crown Prosecutor in cross-examination. The evidence in chief could be interpreted by the jury as being to the effect that there was an expectation upon all of the members of the Comanchero Motorcycle Club that they would obey the club rules. Those rules included that no cowardice would be shown. To say that the person who occupied the position of Road Captain could also be relied upon, in other words, expected, to obey the club rules is not materially different. It really is a statement of the obvious in any event. Why would the club have rules if there was no expectation that they would be followed?

1. Mr Trevallion raised concerns about the evidence first quoted above leading the jury to tendency reasoning (T3854.1). He also asserted that it "goes ... to the reputation or character of Mr Abounader" (T3854.8). He was concerned that it might provide a foundation for the Crown to submit that "given the reputation or character of Mr Abounader he would be more likely to be involved in the fighting" (T3854.11). None of these concerns are at all realistic.

1. The application is refused. I will hear Mr Trevallion as to any direction he might ask that I give the jury at a later time.

**********

Decision last updated: 14 February 2012