R v Hawi & ors (No 26) [2011] NSWSC 1672

Supreme Court New South Wales

Medium Neutral Citation: R v Hawi & ors (No 26) [2011] NSWSC 1672 Hearing dates: 30 August 2011 Decision date: 30 August 2011 Jurisdiction: Common Law - Criminal Before: R A Hulme J Decision: The Crown may rely upon flight as consciousness of guilt in relation to the accused Padovan Catchwords: CRIMINAL LAW - evidence - judicial discretion to limit use of evidence - flight from scene - consciousness of guilt - no prejudice Cases Cited: R v Hawi & ors (No 20) 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: Mr Conwell, on behalf of the accused Padovan, has indicated an objection to the Crown relying upon Mr Padovan leaving the terminal as flight evincing a consciousness of guilt. 2It would seem from the exchange with counsel that had just taken place that there may have been some crossed wires in terms of whether the Crown was in fact relying upon this in the case concerning Mr Padovan. 3The evidence is to the effect that the fighting that was occurring in the terminal ceased at around 1:41:30pm. The CCTV footage shows Mr Padovan moving around the departure hall area in the ensuing minutes, and at least at one point he is seen to walk in a direction approaching the area where the deceased was on the ground receiving medical attention. Mr Peter Zervas, the deceased's brother, is in the area where the deceased is being treated, in a most agitated state, and can be seen to speak with Mr Wainohu for what appears to be a relatively short period of time. There were people who appeared to be security guards in this area at the time as well. How close Mr Padovan actually approached that position is not evident from the camera footage. 4Mr Padovan is then seen to walk in the opposite direction, and at about 2 minutes and 45 seconds after it can be deduced that the fighting had ceased, he is seen to emerge into the arrivals hall on the floor below, having travelled down the escalators and presumably from there proceeded to leave the terminal. 5Whatever be the case as to Mr Conwell's understanding as to whether the Crown was relying upon flight as consciousness of guilt, it does not seem to be a matter from which any particular prejudice arises. 6Mr Conwell indicated that he might possibly have sought evidence from Detective Sergeant Groenewegen concerning a possible explanation for Mr Padovan leaving the terminal; that being that it was part of the "bikie culture" that one does not speak to police officers (T4125.31). However, Mr Conwell frankly conceded that he was not sure that he really would have wanted that evidence to be adduced because it carried potentially prejudicial overtones as well. 7There would seem to be a number of submissions available to be made by Mr Conwell that could persuade the jury against concluding that Mr Padovan leaving the terminal was because of some consciousness of guilt. However that does not mean that the Crown cannot rely upon it. 8It seems to me that the jury could conclude that Mr Padovan leaving the terminal some 2 minutes and 45 seconds after the fighting had concluded was because of a consciousness of guilt. Whether the jury accept that this is the only inference available or they accept an alternative explanation is entirely a jury issue. 9My conclusion is that it would be open to the Crown to put a consciousness of guilt argument to the jury and it will be the subject of the usual directions that I will give as to the need to consider competing explanations. For these reasons I propose to allow the Crown to rely upon flight as consciousness of guilt in relation to Mr Padovan. 10I should add that I dealt with this issue briefly in my judgment on the no case submission that was made by Mr Conwell after the close of the Crown case: R v Hawi & ors (No 20) . Within that judgment (at [43]) there is some further elucidation of the reasoning that might lie behind the Crown's submission on this topic.