R v Hawi (No 1) - [2011] NSWSC 1647

Supreme Court

New South Wales

Medium Neutral Citation: R v Hawi & ors (No 1) [2011] NSWSC 1647
Hearing dates: 8 April 2011
Decision date: 21 April 2011
Jurisdiction: Common Law - Criminal
Before: R A Hulme J
Decision:
Evidence admitted in part

Catchwords: CRIMINAL LAW - evidence - relevance - whether unfairly prejudicial - alleged murder by member of motorcycle club - evidence of rules and organizational structure of club
Legislation Cited: Criminal Procedure Act 1986
Evidence Act 1995
Cases Cited: R v Blick [2000] NSWCCA 61; (2000) 111 A Crim R 326
R v SJRC [2007] NSWCCA 142
Category: Procedural and other rulings
Parties: Regina
Mahmoud Hawi
Farres Abounader
Tiago Costa
Maher Aouli
Representation: Ms N Adams with Ms H Roberts (Crown)
Mr P Dunn QC (Hawi)
Mr J Trevallion (Abounader)
Mr M Pickin (Costa)
Ms A Francis (Aouli)
Solicitor for Public Prosecutions (Regina)
Sid Hawach & Co (Hawi)
Archbold Legal (Abounader)
Kiki Kyriacou Lawyers (Costa & Aouli)

File Number(s): 2009/50087; 2009/52582 2009/64354 2009/13753; 2009/72013 2009/148558

Judgment

Counsel who appear for the accused Hawi, Abounader, Costa and Aouli have objected to the Crown adducing what has been given the shorthand description of "hierarchy" evidence. The evidence is briefly described in the Crown Case Statement at [10] - [11].

In pre-trial disclosure notices (s 143 Criminal Procedure Act 1986), senior counsel who each appear for the accused Menzies and Eken, have indicated an objection to another body of evidence. Nothing is said about the hierarchy evidence and so I assume they take no objection on behalf of their clients.

Counsel for the accused Padovan has specifically indicated that there is no objection to the evidence. That is, perhaps, understandable in that the evidence is concerned with the Comanchero motorcycle club and Mr Padovan was a member of the Hells Angels.

In what purports to be a pre-trial disclosure notice, which is dated 5 April 2011, it is said by some unnamed person on behalf of Mr Potrus that "the accused takes issue with all matters set out in the Crown Statement of facts" and that "the accused does intend to dispute the admissibility of proposed evidence on the basis of relevance and/or prejudice and/or use". I have not heard any explanation for this from Mr Potrus' representatives, but on the face of it, the notice is not a document which can be taken seriously.

Mr Driels, counsel for Mr Potrus, was present during a pre-trial hearing on 11 March 2011. On that occasion I invited counsel to identify any objections as to the admissibility of evidence that could be dealt with before the commencement of the trial. Mr Driels identified two matters but said nothing about the hierarchy evidence. He was present when I set the date for hearing submissions on this subject. Mr Driels did not then, and has not since, sought to join in the argument. I therefore assume that no objection is taken on behalf of Mr Potrus.

There has been no compliance by the…

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 1)

Details

AGLC: R v Hawi (No 1) [2011] NSWSC 1647
Case: [2011] NSWSC 1647
Decision Date: 21 April 2011

CaseChat Overview and Summary

In the case of R v Hawi, the appellant was charged with the murder of a rival motorcycle gang member. The prosecution sought to introduce evidence about the organizational structure and rules of the motorcycle club to which the appellant belonged, arguing that this evidence was relevant to demonstrate the appellant's motive and state of mind. The court had to determine whether this evidence was admissible and not unfairly prejudicial to the defendant.

The central legal issue before the court was whether the evidence of the motorcycle club's rules and structure was relevant and necessary for the prosecution to prove its case, or whether it was more prejudicial than probative. The court needed to balance the probative value of this evidence against the risk of it unfairly prejudicing the defendant. The court considered whether the evidence was directly relevant to an issue in the case, and whether its potential to mislead the jury or cause undue prejudice outweighed its relevance.

The court held that the evidence of the club's rules and structure was relevant to the prosecution's case because it provided context for the appellant's actions and the dynamics of the situation. The court found that the probative value of the evidence was not substantially outweighed by the danger of unfair prejudice. The evidence was necessary to provide the jury with a full understanding of the circumstances surrounding the alleged murder, and therefore it was admissible. The court concluded that the evidence was relevant to the issues in the case and did not unfairly prejudice the defendant.

The court ordered that the evidence of the motorcycle club's rules and structure be admitted as part of the prosecution's case. The trial proceeded with this evidence included, and the jury was able to consider it alongside all other relevant evidence in reaching their verdict.

Orders