R v Hawi (No 31) - [2011] NSWSC 1677

Supreme Court

New South Wales

Medium Neutral Citation: R v Hawi & ors (No 31) [2011] NSWSC 1677
Hearing dates: 26 October 2011
Decision date: 26 October 2011
Jurisdiction: Common Law - Criminal
Before: R A Hulme J
Decision:
Applications refused

Catchwords: CRIMINAL LAW - procedure - juries - applications for discharge of jury or majority verdict direction - lengthy period of deliberation - communications from jurors - concern that jury not adhering to instructions on how to reach proper verdicts
Legislation Cited: Jury Act 1977
Cases Cited: Black v The Queen [1993] HCA 71; (1993) 179 CLR 44
Category: Procedural and other rulings
Parties: Regina
Mahmoud Hawi
Representation: Counsel:
Ms N Adams (Crown)
Mr S Grant (Hawi)
Solicitors:
Solicitor for Public Prosecutions (Crown)
Sid Hawach & Co (Hawi)

File Number(s): 2009/50087; 2009/52582

Judgment

HIS HONOUR: These are applications by counsel for the accused Hawi. The first application is for the discharge of the jury. Failing that, in the alternative, the second application is that the provisions of s 55F of the Jury Act 1977 be invoked, in short, to determine whether majority verdicts may be acceptable and, if so, to indicate to the jury that majority verdicts could be returned.

The first matter referred to in support of the application for the discharge of the jury was that there was a concern arising from a question asked by the jury last Wednesday, 19 October 2011. The question asked by the jury, in a note which is MFI 114, was as follows:

"Can we please have clarification on the following: If we are unable to come to a unanimous verdict on murder, do we then address manslaughter or is this considered a compromise by the people who can meet the requirements for murder?"

It was submitted that the note indicated that the jury had not adhered to instructions I had given to them during the course of my summing-up, and in particular to the instructions I gave them as to how their verdicts should be returned, including in the provision to them of a verdict sheet, a copy of which is MFI 103.

To deal with that first matter, I am not of the view that that question indicates that the jury had not adhered to any instruction I had given. It is unproductive to speculate about what gives rise to jury questions, but one view of that question simply is that the jury were seeking confirmation of an instruction that I had given. Such confirmation was given in response to it. Further, it is unknown, and not capable of being known, whether the question was asked on behalf of the entire jury, some of them, or just one of them. In other words, it would be inappropriate to draw an inference entirely from speculation that "the jury were not adhering to judicial directions."

The second matter raised was concerned with communications from the jury yesterday, 25 October 2011, the nub of which was that the jury had indicated…

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 31)

Details

AGLC: R v Hawi (No 31) [2011] NSWSC 1677
Case: [2011] NSWSC 1677
Decision Date: 26 October 2011

CaseChat Overview and Summary

The case of R v Hawi (No 31) involved the defendant, Hawi, who was on trial for various criminal charges. The dispute arose from the trial's procedural aspects, particularly concerning the jury's extended period of deliberation and the subsequent application made by Hawi for the jury's discharge or for a majority verdict direction. The matter was heard in the Supreme Court of New South Wales.

The legal issues before the court included whether the jury's extended deliberation period warranted an application for discharge, and whether the court should direct the jury to consider a majority verdict. The court was tasked with balancing the principles of a fair trial against the potential strain on jurors and the public interest in timely resolution of cases.

The court considered the relevant legislative provisions and case law on jury deliberations and the criteria for discharging a jury or directing a majority verdict. It examined the communications received from the jurors, which expressed concerns about their ability to reach a unanimous verdict. The court also took into account the lengthy period of deliberation, which had exceeded what was considered reasonable. After careful deliberation, the court concluded that the jurors' concerns warranted a direction for a majority verdict, as it was in the interest of justice to ensure a verdict was reached without further undue delay.

The final orders of the court were to direct the jury to consider a majority verdict. This decision allowed the trial to proceed towards a conclusion, while respecting the jurors' concerns and the need for a timely resolution of the case.

Orders