R v Hawi & ors (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 1Counsel 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]. 2In 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. 3Counsel 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. 4In 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. 5Mr 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. 6There has been no compliance by the accused Kisacanin with the order I made on 11 March 2011 that defence pre-trial disclosure notices be filed and served by 1 April 2011. I will assume, until I am told otherwise, that there is no objection on his behalf.