R v Hawi & ors (No 20) [2011] NSWSC 1666

Supreme Court New South Wales

Medium Neutral Citation: R v Hawi & ors (No 20) [2011] NSWSC 1666 Hearing dates: 15 - 16 August 2011 Decision date: 22 August 2011 Jurisdiction: Common Law - Criminal Before: R A Hulme J Decision: Application for directed verdicts of acquittal refused Catchwords: CRIMINAL LAW - particular offences - offences against peace and public order - affray, riot, unlawful assembly and like offences - riot - affray - sufficiency of evidence - whether case to answer - CRIMINAL LAW - general matters - criminal liability and capacity - defence matters - defence of persons or property - defence of another Legislation Cited: Crimes Act 1900 Cases Cited: Colosimo v Director of Public Prosecutions (NSW) [2006] NSWCA 293 R v Hawi & ors (No 18) R v Keli LANE [No 18] [2010] NSWSC 1545 Category: Procedural and other rulings Parties: Regina David Padovan Representation: Counsel: Ms N Adams with Ms H Roberts (Crown) Mr A Conwell (Accused) Solicitors: Solicitor for Public Prosecutions Nyman Gibson Stewart File Number(s): 2009/59368

Judgment 1HIS HONOUR: On 22 August 2011 I announced that I refused an application to direct the jury to return verdicts of not guilty in respect of the accused, David Padovan. These are my reasons. 2On 24 May 2011 Mr Padovan was arraigned before a jury panel and pleaded that he was not guilty in respect of the following alleged offences: Affray : On 22 March 2009 at Mascot in the State of New South Wales used or threatened unlawful violence towards other persons such as would cause a person of reasonable firmness then being present at the scene to fear for his or her personal safety. Riot : On 22 March 2009 at Mascot in the State of New South Wales together with at least 11 other persons assembled together used or threatened unlawful violence for a common purpose and the conduct of them taken together was such as would cause a person of reasonable firmness then being present at the scene to fear for his or her personal safety. Alternatively, affray : On 22 March 2009 at Mascot in the State of New South Wales used or threatened unlawful violence towards other persons such as would cause a person of reasonable firmness then being present at the scene to fear for his or her personal safety. 3The trial has proceeded with six other accused who are charged with murder, alternatively riot, four of whom are also charged with affray. The charges concerning Mr Padovan are, respectively, counts 3, 4 and 5 in the indictment. 4The Crown closed its case on 11 August 2011. Mr Conwell, counsel for Mr Padovan, foreshadowed making a no case to answer submission. Such submissions were made on 15 and 16 August 2011. A question arose as to the correct construction of s 93B of the Crimes Act 1900 during no case submissions that were made on behalf of a co-accused. I deferred giving judgment until I had heard submissions on that subject by the Crown Prosecutor and counsel for each of the accused. Those submissions were made on 18 August 2011. In the end, the Crown was granted leave to amend the indictment in respect of counts of riot so as to delete the averment that the accused "threatened" unlawful violence: see R v Hawi & ors (No 18) .