Citation: R v Hawi & ors (No 26) [2011] NSWSC 1672
Court: Supreme Court of New South Wales
Date: 30 August 2011
Judge(s): Hulme J
Background
This decision arose in the course of a major criminal trial involving multiple accused. The specific ruling concerned one accused, referred to here as the accused Padovan, in the context of a violent incident at an airport terminal that resulted in the death of one person.
CCTV footage showed the accused moving through the departure hall after the fighting ceased, at one point approaching the area where the deceased was receiving medical attention. Approximately two minutes and 45 seconds after the fighting ended, he descended via escalator to the arrivals hall and left the terminal.
Counsel for the accused objected to the Crown characterising this departure as "flight" evidencing a consciousness of guilt. There was also some initial confusion between the parties about whether the Crown was actually pressing this argument in relation to the accused.
Legal Issues
- Whether the Crown could rely on the accused's departure from the terminal as evidence of flight demonstrating consciousness of guilt.
- Whether any prejudice arose from the Crown pursuing this argument.
- Whether a competing explanation for the departure (consistent with an alleged "bikie culture" of not speaking to police) should be adduced to counter the Crown's inference.
Decision
Hulme J found no particular prejudice arising from the Crown's reliance on the departure as flight. Although counsel for the accused had contemplated calling a detective to provide an alternative explanation rooted in the subculture of not speaking to police, counsel candidly acknowledged that such evidence would carry its own potentially prejudicial overtones and he was uncertain whether he would have pursued it.
The Court accepted that a jury could rationally conclude that leaving the terminal roughly two and a half minutes after the fighting ended was consistent with a consciousness of guilt. The existence of competing explanations did not preclude the Crown from advancing the inference.
His Honour ruled that it would be open to the Crown to put the consciousness of guilt argument to the jury. The ruling would be accompanied by standard directions requiring the jury to consider competing explanations before drawing any adverse inference.
His Honour also noted that the same issue had been addressed, albeit briefly, in an earlier ruling on a no-case submission: R v Hawi & ors (No 20) at [43], which provided further reasoning relevant to the Crown's position.
Orders Made
No orders were made in this decision.
Key Takeaways
- The Supreme Court confirmed that flight from a scene, even at a relatively short interval after an incident, can be left to the jury as potential evidence of consciousness of guilt, provided appropriate directions are given about competing explanations.
- A jury question arises where multiple inferences are available from departure evidence: whether the Crown's inference is the only available one, or whether an innocent explanation exists, is a matter for the jury to determine.
- Where defence counsel contemplated adducing alternative explanation evidence but declined to do so because of its own prejudicial potential, the Court found no resulting prejudice to the accused from the Crown's reliance on the departure.
- Standard judicial directions about the need to consider competing explanations are the appropriate mechanism for managing the risk of unfair prejudice in consciousness of guilt arguments, rather than exclusion of the Crown's submission altogether.
- Earlier interlocutory rulings in the same proceeding (here, R v Hawi & ors (No 20)) may provide relevant reasoning that informs later evidentiary decisions, and cross-referencing those rulings can be material to understanding the court's analysis.
Legislation and Cases Referenced
Legislation:
- None cited in this decision.
Cases:
- R v Hawi & ors (No 20) [2011] NSWSC (exact citation not provided in text)