R v Hawi & ors (No 29) [2011] NSWSC 1675

Supreme Court New South Wales

Medium Neutral Citation: R v Hawi & ors (No 29) [2011] NSWSC 1675 Hearing dates: 28 September 2011 Decision date: 31 October 2011 Jurisdiction: Common Law - Criminal Before: R A Hulme J Decision: Application to discharge jury refused Catchwords: CRIMINAL LAW - procedure - juries - discharge and excusing from attendance - prejudicial to accused - evidence of camera times analysis flawed - whether advising jury that submission based on evidence proceeded on mistake premise is prejudicial - whether counsel's credibility undermined Category: Procedural and other rulings Parties: Regina Zoran Kisacanin Representation: Counsel: Ms N Adams with Ms H Roberts (Crown) Mr J Gordon (Accused) Solicitors: Solicitor for Public Prosecutions Elie Rahme & Associates File Number(s): 2009/75184; 2009/127777

Judgment 1HIS HONOUR: On Wednesday, 28 September 2011, Mr Gordon, counsel for the accused Kisacanin, made an application that the jury be discharged in respect of his client. 2After some consideration of this issue, I indicated that the application to discharge the jury was refused and that I would give reasons at a later time. I now formally do so. 3The basis for the application was as follows: * the jury will be told that a submission made to the jury by Mr Gordon, concerning a short video recording made by a tourist, Ms Deborah Deng (the "Deng footage" - Exhibit FE), was made without sound foundation; * as a result, the jury will form an adverse view of Mr Gordon's credibility; and * as a consequence, the jury might not accept any other submission made by Mr Gordon (SU 322). 4This was said to give rise to prejudice necessitating a discharge of the jury. 5In order to explain the basis of the application, it is necessary to trace a rather convoluted path through the history of the trial and the evidence that is before the jury.