R v Hawi (No 32)

[2011] NSWSC 1678

Supreme Court

New South Wales

Medium Neutral Citation:	R v Hawi & ors (No 32) [2011] NSWSC 1678
Decision date:	31 October 2011
Jurisdiction:	Common Law - Criminal
Before:	R A Hulme J
Decision:	Jury has deliberated for "reasonable time" for majority verdict purposes
Catchwords:	CRIMINAL LAW - procedure - verdict - unanimous and majority verdicts - whether deliberation for reasonable period of time
Legislation Cited:	Jury Act 1977
Category:	Procedural and other rulings
Parties:	Regina Mahmoud Hawi Christian Adam Menzies Farres Abounader Ishmail Eken Usama Potrus Zoran Kisacanin David Padovan
Representation:	Counsel: Ms N Adams (Crown) Mr S Grant (Hawi) Mr J Stratton SC (Menzies) Mr J Trevallion (Abounader) Mr P Young SC (Eken) Mr R Driels (Potrus) Mr J Gordon (Kisacanin) Mr A Conwell (Padovan) Solicitors: Solicitor for Public Prosecutions (Crown) Sid Hawach & Co (Hawi) Hunter Flood Pty Limited (Menzies) Archbold Legal (Abounader) Purcell Felton Lawyers (Eken) Barakat Lawyers (Potrus) Elie Rahme & Associates (Kisacanin) Nyman Gibson Stewart (Padovan)
File Number(s):	2009/50087

Judgment

1. HIS HONOUR: Last Friday I received a note from the jury (MFI.122):

"We believe at this point in time we will be unable to reach a unanimous verdict on the primary charges."

1. Earlier last Friday the jury sent a note (MFI.121) which said, in part:

"Update on where we are at. We are still finding it difficult to come to unanimous dec isions on the primary charges. Is there any direction we can be provided to resolve our stalemate. There has been movement on individual decisions, however not to the point of a unanimous decision. "

1. In relation to that note, the Crown Prosecutor indicated that it was time to consider giving the jury a majority verdict direction. I raised with counsel the question whether one of the preconditions in s 55F of the Jury Act 1977 was satisfied, that is whether:

(2)(a) ... the jurors have deliberated for a period of time (being not less than 8 hours) that the court considers reasonable having regard to the nature and complexity of the criminal proceedings...

1. Some counsel submitted that reasonable time had elapsed whilst others did not oppose such a finding being made.

1. The nature and complexity of the proceedings are clearly such that a period greatly in excess of the minimum of eight hours for the jury's deliberations would be appropriately regarded as reasonable.

1. To state the matter shortly, there are 7 accused and 25 potential verdicts to consider. The transcript of the evidence exceeds 4000 pages. The jury have a copy of that transcript. There are, in addition, a very large number of exhibits which include a multitude of sequences of security camera footage. Counsel invited the jury's close attention to the evidence in the course of their closing addresses, which spanned some 11 sitting days. My summing-up spanned 6 days, although not all of them were full days.

1. The jury retired to commence their deliberations on 29 September 2011. Their deliberations continued for what is now 18 days or approximately 94 hours.

1. I am satisfied that the jury have deliberated for a period of time that is reasonable in the circumstances.

1. The other precondition in s 55F is:

2(b) the court is satisfied, after examination on oath of one or more of the jurors, that it is unlikely that the jurors will reach a unanimous verdict after further deliberation.

1. I propose to have the foreperson sworn or affirmed and ask her a question to that effect. If her response is in the affirmative, then I propose to direct the jury that majority verdicts may be returned.

1. A question was raised last Friday as to whether there needs to be some discrimination as to the charges upon which majority verdicts may be returned. That is, whether it is only on what might be termed "primary charges", or whether it could include alternative charges. I am satisfied that majority verdicts would be acceptable on any of the charges, whether they be primary or alternative. I can see no practical way, or legal necessity, for there to be any discrimination.

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Decision last updated: 14 February 2012