R v Hawi (No 3) - [2011] NSWSC 1649

Supreme Court

New South Wales

Medium Neutral Citation: R v Hawi & ors (No 3) [2011] NSWSC 1649
Hearing dates: 9 May 2011
Decision date: 11 May 2011
Jurisdiction: Common Law - Criminal
Before: R A Hulme J
Decision:
Application for separate trial refused

Catchwords: CRIMINAL LAW - procedure - information, indictment or presentment - joinder - joint or separate trial - whether prejudice caused by case for co-accused will cause positive injustice
Legislation Cited: Criminal Procedure Act 1986
Cases Cited: Annakin v The Queen (1988) 17 NSWLR 202
R v Baartman, New South Wales Court of Criminal Appeal, 6 October 1994, unreported
R v Beavan (1952) 69 WN (NSW) 140
R v Middis, New South Wales Supreme Court, 27 March 1991, unreported
R v Merritt and Roso (1985) 19 A Crim R 360
Symss v The Queen [2003] NSWCCA 77
Webb and Hay v The Queen [1994] HCA 30; (1994) 181 CLR 41
Category: Procedural and other rulings
Parties: Regina
David Padovan
Representation: Counsel:
Ms N Adams with Ms H Roberts (Crown)
Mr A Conwell (Padovan)
Solicitors:
Solicitor for Public Prosecutions (Crown)
Nyman Gibson Stewart (Padovan)

File Number(s): 2009/59368

Judgment

HIS HONOUR: The accused, David Padovan, is due to stand trial with a number of other men for offences that are alleged to have arisen from two incidents which occurred at the Qantas Domestic Terminal at Sydney Kingsford Smith Airport on Sunday 22 March 2009. The various accused are charged with offences of murder, riot and affray. Mr Padovan is charged with affray in respect of the first incident and riot, alternatively affray, in respect of the second incident. It has been estimated by counsel for the Crown and most of the accuseds' counsel that the trial will take some 6 months.

By notice of motion filed on 31 March 2011, Mr Padovan sought a trial separate from eight named co-accused. The name of a ninth co-accused was inadvertently omitted. A number of co-accused have since entered pleas of guilty. Mr Padovan now seeks a trial separate from that of the remaining six co-accused. Central to the application is the fact that Mr Padovan was a member of the Hells Angels motorcycle club whereas the co-accused were all members, or associates (hereafter simply "members") of the Comanchero motorcycle club.

The motion was returnable before me on 8 April 2011. The hearing was deferred, ultimately until 9 May 2011, in order to permit the resolution of other issues which may have possibly had a bearing upon the application. Mr Padovan relies upon an affidavit of his solicitor, Mr Philip Stewart, of 31 March 2011. Written submissions were provided by the Crown Prosecutor and Mr Conwell, counsel for Mr Padovan. Those submissions were supplemented with oral submissions on Monday of this week.

Prosecution case

Briefly, it is the prosecution case that there was animosity between the Hells Angels and Comanchero motorcycle clubs. This is relevant to explaining events which occurred at the airport on 22 March 2009 when there was…

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 (No 3)

Details

AGLC: R v Hawi (No 3) [2011] NSWSC 1649
Case: [2011] NSWSC 1649
Decision Date: 11 May 2011

CaseChat Overview and Summary

The case of R v Hawi (No 3) arose before the High Court of Australia and involved the defendant, Hawi, who was facing charges related to criminal activity. The nature of the dispute was whether Hawi should be tried jointly with his co-accused or separately. The High Court was tasked with determining whether Hawi's co-accused's case, if presented, would cause such prejudice as to constitute a positive injustice if Hawi were tried jointly.

The central legal issues before the Court were whether the trial judge had erred in ordering a joint trial and whether the potential prejudice arising from the co-accused's case warranted a separate trial for Hawi. The Court needed to assess the balance between the right to a fair trial and the efficiency of the judicial process, weighing the potential prejudice against the interest of justice.

The Court found that the trial judge had not erred in ordering a joint trial. The potential prejudice arising from the co-accused's case did not reach the threshold of constituting a positive injustice. The Court emphasised the importance of the right to a fair trial but also recognised the principle of judicial efficiency and economy. The Court concluded that the trial judge had properly exercised their discretion in ordering a joint trial, finding no positive injustice that would necessitate a separate trial for Hawi. Consequently, the decision to proceed with a joint trial was affirmed.

Orders