R v Hawi & ors (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 1HIS 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. 2By 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. 3The 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.