Citation: R v Hawi & ors (No 3) [2011] NSWSC 1649
Court: Supreme Court of New South Wales
Date: 11 May 2011
Judge(s): Hulme J
Background
The accused, a member of the Hells Angels motorcycle club, faced charges of affray and riot arising from two violent incidents at Sydney Airport on 22 March 2009. His six co-accused were members of the rival Comanchero motorcycle club. The incidents involved a confrontation at Gate 5 and a larger brawl in the departure hall, in which one man died from stab wounds and blunt force injuries. The full trial was expected to run for approximately six months.
The prosecution alleged that both groups attended the airport knowing violence was possible, but maintained that only the Comanchero accused were armed with weapons, including a knife, scissors, and knuckle dusters. The accused's co-accused, by contrast, ran a defence suggesting that Hells Angels members had themselves brought and used those weapons.
The accused applied by notice of motion for a separate trial, arguing that the case his co-accused intended to run would effectively arm the prosecution against him in a way he could not fairly meet.
Legal Issues
- Whether the manner in which the co-accused intended to conduct their defence would cause the accused "positive injustice" sufficient to justify a separate trial.
- Whether the competing defences of rival accused constituted a "cut throat defence" and, if not, whether the principles governing joint trials still applied.
- Whether, in all the circumstances, it would be unjust for the accused to be tried jointly with his co-accused.
Decision
Hulme J rejected the application. His Honour found that while the co-accused's defence did place the accused and the Hells Angels in a more difficult position, this did not amount to the kind of positive injustice required to order separate trials. The evidence attributed to individual accused members would remain distinct, and the jury would be directed to assess each accused's own conduct, thoughts, and actions rather than reasoning globally about the conduct of the Hells Angels as a group.
The accused's concern centred on the jury accepting that "the Hells Angels were armed" and then reasoning collectively that the accused attended the airport intending violence. Hulme J considered that appropriate jury directions would address this risk, and he found no real basis for concluding that the co-accused's defence would unfairly strengthen the prosecution case against the accused in a way that could not be managed.
His Honour acknowledged that the competing cases were not a "typical" cut throat defence, which usually involves co-accused each blaming the other for a single offence against a third party. Here, the prosecution alleged that rival groups attacked each other, and both sides were attributing blame across club lines. Nevertheless, the established principle that persons charged jointly should ordinarily be tried together remained applicable, and the interests of justice in having a single jury determine all charges in one proceeding was described as a powerful consideration.
Orders Made
- The application by the accused for a separate trial was refused.
Key Takeaways
- The prima facie position in joint criminal proceedings is that co-accused should be tried together, and this principle applies even where co-accused run defences that are adverse to each other's interests.
- Separate trials will only be ordered where a co-accused's case would cause "positive injustice" to another accused that cannot be addressed through jury directions or other trial management measures.
- The "cut throat defence" rationale for joint trials is not confined to its classic form (two accused blaming each other for an offence against a third party); the principle of avoiding inconsistent verdicts retains force wherever accused persons attribute blame to one another.
- Appropriate jury directions requiring individual assessment of each accused's own conduct and state of mind are a relevant factor in evaluating whether a joint trial will produce injustice.
- Considerations of cost and convenience, while less weighty than the interests of justice, remain legitimate factors in the separate trial analysis.
Legislation and Cases Referenced
Legislation
- Criminal Procedure Act 1986 (NSW)
Cases
- Annakin v The Queen (1988) 17 NSWLR 202
- R v Baartman, NSW Court of Criminal Appeal, 6 October 1994 (unreported)
- R v Beavan (1952) 69 WN (NSW) 140
- R v Middis, NSW 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