R v Hawi [2014] NSWSC 837

Supreme Court New South Wales

Medium Neutral Citation: R v Hawi [2014] NSWSC 837 Hearing dates: 19 June 2014 Decision date: 23 June 2014 Before: Harrison J Decision: 1. Grant bail subject to conditions. 2. Grant liberty to apply on 24 hours' notice. 3. Direct that an unredacted form of this judgment is not to be published, other than to the Attorney General, until further order. Catchwords: BAIL - applicant awaiting re-trial following successful appeal to Court of Criminal Appeal - where applicant effectively in pre-trial custody since 15 November 2012 - where new date for trial unlikely before February 2015 - whether unacceptable risks identified - whether identified risks capable of mitigation by imposition of appropriate conditions Legislation Cited: Bail Act 2013 Bail Act 1977 (Vic) Cases Cited: Hawi v R [2014] NSWCCA 83 R v Hawi [2012] NSWSC 332 Woods v DPP [2014] VSC 1 Category: Interlocutory applications Parties: Mahmoud Hawi (Applicant) Crown (Respondent) Representation: Counsel: B Walker SC and G Bashir (Applicant) H Roberts (Respondent) Solicitors: AHA Taylor Lawyers (Applicant) Solicitor for Public Prosecutions (Respondent) File Number(s): 2014/159783, 2009/50087, 2009/52582 Publication restriction: There are no restrictions upon publication of the redacted form of this judgment

Judgment 1HIS HONOUR: Mahmoud Hawi applies for bail.

Background 2On 22 March 2009 Anthony Zervas was killed during a brawl at Sydney Airport. Two rival motorcycle gangs were involved. They were the Hells Angels and the Comancheros. Mr Hawi was at that time the President of the Comancheros. Mr Zervas was not a member of the Hells Angels but his brother was. Mr Hawi was present and became involved in the fighting. 3Mr Hawi was arrested on 6 April 2009 and charged with affray. He was refused bail. Latham J granted bail on 15 May 2009. 4Mr Hawi was subsequently charged with murder on 30 June 2009. He was refused bail on that charge and has remained in custody since then. 5A trial of Mr Hawi and five others commenced at Parramatta on 24 May 2011 before R A Hulme J. On 2 November 2011 the jury found Mr Hawi guilty of murder and guilty of affray. None of the other accused was found guilty of murder. His Honour sentenced Mr Hawi on 10 April 2012: R v Hawi [2012] NSWSC 332. Mr Hawi was sentenced to a fixed term of imprisonment of 3 years and 6 months to date from 16 May 2009 expiring on 15 November 2012 for the affray. He was sentenced to a non-parole period of imprisonment for the murder of 21 years and a balance of term of 7 years to date from 16 November 2009. 6Mr Hawi appealed against his conviction for murder to the Court of Criminal Appeal. That Court published its reasons for judgment on 16 May 2014: Hawi v R [2014] NSWCCA 83. The Court allowed the appeal, set aside the conviction and ordered a new trial. The Chief Justice would have directed the entry of a verdict of acquittal but, in the absence of a conclusive majority decision, adopted the orders proposed by Price J, who was in favour of a new trial. McCallum J would have wholly dismissed the appeal. 7Mr Hawi remains in gaol awaiting re-trial. In the events that have occurred, he has therefore been in what amounts to pre-trial custody for one year and seven months since 15 November 2012 when his sentence for affray expired. The proceedings are next listed for mention before Johnson J on 4 July 2014.