Citation: R v Hawi & ors (No 21) [2011] NSWSC 1667
Court: Supreme Court of New South Wales
Date: 23 August 2011
Judge(s): Hulme J
Background
This decision arises from a criminal trial involving multiple accused, including the accused Hawi and the accused Abounader, both alleged members of the Comanchero Motorcycle Club. Evidence had been adduced at trial regarding the club's rules, including a rule that cowardice would not be tolerated.
During cross-examination of the accused Hawi, the Crown Prosecutor asked whether Abounader, in his role as Road Captain, could be relied upon to follow club rules, specifically the rule against showing cowardice. No objection was taken to those questions at the time.
At the close of proceedings that day, counsel for Abounader (Mr Trevallion) flagged a concern about the cross-examination passage and reserved his position overnight. The following morning, he applied for the discharge of the entire jury.
Legal Issues
- Whether the cross-examination passage, by implication linking Abounader to the club's anti-cowardice rule, was sufficiently prejudicial to Abounader to warrant discharging the jury
- Whether that evidence risked inviting impermissible tendency reasoning or adverse character reasoning against Abounader
- Whether any prejudice arising from the cross-examination was materially different from evidence already before the jury
Decision
Hulme J refused the application, finding that the cross-examination evidence did not advance the case against Abounader in any significant way beyond what was already before the jury. During Hawi's evidence in chief, counsel for Hawi had already elicited that all club members were expected to obey club rules. The cross-examination passage merely stated that the Road Captain could also be expected to do so, which the court characterised as a statement of the obvious.
The court rejected the submission that the evidence gave rise to realistic concerns about tendency reasoning or character reasoning. The suggestion that a jury might use the evidence to reason that Abounader was more likely to have been involved in fighting, because of his reputation or character as someone who would not show cowardice, was described as not realistic on the facts.
Hulme J noted he would hear from Mr Trevallion at a later time regarding any jury direction that might be sought to address the matter.
Orders Made
No formal orders were made. The application to discharge the jury was refused.
Key Takeaways
- The Supreme Court refused to discharge the jury where impugned cross-examination evidence was not materially different from evidence already adduced by the defence in the accused's own evidence in chief.
- A jury discharge application will not succeed merely because cross-examination touches on a co-accused's adherence to group rules, where such adherence was already effectively in evidence and would have been obvious to the jury in any event.
- Concerns about tendency or character reasoning must be realistic and grounded in a plausible chain of reasoning; speculative or far-fetched prejudice will not justify the drastic remedy of jury discharge.
- Where a potential prejudice issue arises mid-trial, the court indicated a willingness to consider an appropriate jury direction as a less disruptive remedy than discharge.
- No objection was taken at the time the questions were asked, which formed part of the factual context the court considered in assessing the application.
Legislation and Cases Referenced
Legislation: None cited in the judgment.
Cases: None cited in the judgment.