R v Hawi

Supreme Court of NSW|2014-06-19|Before: Harrison J, Latham J, Hulme J, Price J, McCallum J, Johnson J

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.

The Crown case 8The Crown case against Mr Hawi is thoroughly captured in the sentencing remarks of R A Hulme J at [5]-[37] and [42]-[55]. An additional detailed summary of the evidence at the trial is to be found in the reasons for judgment of the Court of Criminal Appeal. 9The case against Mr Hawi at trial was put on three bases. First, that he was directly involved in the fatal assault upon the deceased by striking him with a bollard. Secondly, that Mr Hawi was a participant in a joint criminal enterprise to inflict grievous bodily harm upon members of the Hells Angels motorcycle club. Thirdly, that Mr Hawi was a participant in a joint criminal enterprise to assault members of that club with foresight of the possibility that one or more of the participants would intentionally inflict grievous bodily harm. The Crown alleged that the joint criminal enterprise was formed during the course of the earlier interactions between Mr Hawi and the Hells Angels club members but at the latest when Mr Hawi and other Comancheros pursued Mr Zervas to the ground and assaulted him. 13The Crown contends that a case remains to be run at a re-trial against Mr Hawi for murder on a joint criminal enterprise basis, as well as for direct responsibility and accessorial liability.

The Bail Act 2013 14The Act came into operation on 20 May 2014 and applies to applications made after that date. The central provision is s 17, which is in the following terms: "17 Requirement to consider unacceptable risk (1) A bail authority must, before making a bail decision, consider whether there are any unacceptable risks. (2) For the purposes of this Act, an 'unacceptable risk' is an unacceptable risk that an accused person, if released from custody, will: (a) fail to appear at any proceedings for the offence, or (b) commit a serious offence, or (c) endanger the safety of victims, individuals or the community, or (d) interfere with witnesses or evidence. (3) A bail authority is to consider the following matters, and only the following matters, in deciding whether there is an unacceptable risk: (a) the accused person's background, including criminal history, circumstances and community ties, (b) the nature and seriousness of the offence, (c) the strength of the prosecution case, (d) whether the accused person has a history of violence, (e) whether the accused person has previously committed a serious offence while on bail, (f) whether the accused person has a pattern of non-compliance with bail acknowledgments, bail conditions, apprehended violence orders, parole orders or good behaviour bonds, (g) the length of time the accused person is likely to spend in custody if bail is refused, (h) the likelihood of a custodial sentence being imposed if the accused person is convicted of the offence, (i) if the accused person has been convicted of the offence and proceedings on an appeal against conviction or sentence are pending before a court, whether the appeal has a reasonably arguable prospect of success, (j) any special vulnerability or needs the accused person has including because of youth, being an Aboriginal or Torres Strait Islander, or having a cognitive or mental health impairment, (k) the need for the accused person to be free to prepare for their appearance in court or to obtain legal advice, (l) the need for the accused person to be free for any other lawful reason. (4) The following matters (to the extent relevant) are to be considered in deciding whether an offence is a serious offence (or the seriousness of an offence), but do not limit the matters that can be considered: (a) whether the offence is of a sexual or violent nature or involves the possession or use of an offensive weapon or instrument within the meaning of the Crimes Act 1900 , (b) the likely effect of the offence on any victim and on the community generally, (c) the number of offences likely to be committed or for which the person has been granted bail or released on parole. (5) If the person is not in custody, the question of whether there are any unacceptable risks is to be decided as if the person were in custody and could be released as a result of the bail decision." 15The concept of unacceptable risk finds expression in other jurisdictions. Section 4(2)(d) of the Bail Act 1977 (Vic) was considered by Bell J in Woods v DPP [2014] VSC 1 at [47] as follows: "[47] The test in s 4(2)(d)(i) is expressed in terms of 'unacceptable' risk not in terms of the magnitude or degree of the risk. Moreover, not all of the circumstances specified in s 4(3) relate to the degree of the risk. It follows, as Redlich J pointed out in Haidy, that '[t]he degree of likelihood of the occurrence of the event may be only one factor which bears upon whether the risk is unacceptable': [2004] VSC 247 at [18]. Consistently with the presumption of innocence and the prosecutorial onus of proof, it is the overall effect of the multiplicity of considerations in the individual facts and circumstances of the case which must be considered. In consequence, bail may be granted though a risk of offending or not answering bail is relatively high when other circumstances, such as inordinate delay between arrest of the accused and trial or a weak prosecution case, lead to the conclusion that the risk is not unacceptable, having regard to the presumed innocence, right to liberty and other human rights of the accused and relevant public interest considerations. Conversely, a relatively low risk of re-offending may be overwhelmed by considerations on the opposite side, such as a high risk of not answering bail, which establish that the risk is unacceptable."

The Crown's submissions 16The Crown quite properly conceded in the present case that a number of the factors calling for consideration favoured Mr Hawi. For example, whilst he has a criminal record, it is not lengthy and it does not contain any recent matters of violence or matters that are similar to the charge that he faces. Mr Hawi has never committed an offence while on bail and he has no history of failing to appear or to comply with bail conditions or other forms of conditional liberty. Mr Hawi has a history of employment and he has close family and community ties. He is married with two children. 17However, the Crown persisted with a submission based on s 17(2)(a) of the Act. It contended that Mr Hawi's circumstances are now fundamentally different to those that applied to him in April 2009 when he was charged with affray and complied with his bail conditions at that time. He now faces a murder charge upon which he has previously been convicted and for which he has been sentenced to a substantial term of imprisonment. The prospect of a long period in custody has now in that sense materialised, subject to the outcome of the pending trial. The Crown contends that these matters increase the risk of Mr Hawi failing to appear. 18The Crown further contended that it could identify factors amounting to unacceptable risks in terms of s 17(2)(b), (c) and (d) of the Act. That necessarily amounts to a submission that there is an unacceptable risk, if released from custody, that Mr Hawi will commit a serious offence, or endanger the safety of victims, or interfere with witnesses or evidence. The Crown conceded that, in the particular circumstances of this case, those putative unacceptable risks were, by reason of the material upon which the Crown relied to establish them, effectively only a different way of stating or formulating the same risk. I hasten to observe that adopting such an approach neither weakens nor dilutes the significance of any of the matters to which the Crown draws attention in support of its proposition that it can demonstrate the existence of an unacceptable risk or risks in this case. 19In this respect the Crown contended that the nature and seriousness of the subject offence, combined with Mr Hawi's background as a member of the Comancheros, were matters of high significance for present purposes. It is not controversial that Mr Hawi held office as the National President of the Comancheros, a fact that the sentencing judge considered disentitled him to a finding of good character for sentencing purposes. There was, and apparently still is, a history of animosity between the two rival clubs that manifested itself in the events of 22 March 2009. 20Mr Hawi remained a member of the Comancheros throughout his trial and sentencing proceedings. He has maintained his close association with members of the club throughout his period in custody. The Crown relied particularly upon a statement from Detective Acting Superintendent Wayne Walpole dated 18 June 2014, which became exhibit 2 on this application. I made a non-publication order in respect of that exhibit. The statement chronologues a series of visits made to Mr Hawi while an inmate in custody between 26 April 2009 and the present time by several members of the Comancheros and other "Outlaw Motor Cycle Gangs". The visitors are identified in the statement but it is unnecessary to identify them here. The Crown has submitted, in effect, that if Mr Hawi has maintained connections with these people while in gaol, his release on bail will only facilitate his association with them further. The Crown has not identified a particular or specific concern arising from these associations. 22Finally, the Crown relied upon the very nature and extent of the frightening violence that erupted at Sydney Airport and out of which the current charge of murder evolved. The fact of Mr Hawi's involvement as a participant in these events is not in doubt even if the details of it are. The events resulted in the death of Mr Zervas. That death was an incident in ongoing hostilities between the two rival gangs. It was not a killing planned or carried out in secret or beyond public view. The deceased was pursued and beaten to death with a weapon spontaneously claimed from the scene. Members of the public were put at risk of physical harm by reason of the size and uncontrolled nature of the brawl. It is reasonable to conclude that the killing was witnessed by people who feared for their own safety and were horrified and frightened by what they saw. 23The Crown submitted that Mr Hawi was the leader of his group, and the person with the most influential role to play in how the events of that day unfolded. The Crown contended that the public location of the affray, followed by the riot and the death of Mr Zervas, are matters of significance in considering the seriousness of the offence and the risks that are posed by a grant of bail. The Crown emphasised the fact that the events developed largely or at least in part as a matter of chance or circumstance, which only added to, rather than detracted from, the unacceptability of the risk posed to the community if Mr Hawi were to be released from custody.

Section 17(3) 24Section 17(3) of the Act contains a prescriptive list of the factors to be considered in assessing and deciding whether or not the existence of an unacceptable risk has been established. Section 17(3)(a) 25The Crown accepts that Mr Hawi's background and community ties are in his favour. This is particularly evident from material tendered on his behalf without objection in the form of unchallenged affidavits from family members offering to provide security by way of surety for his release, subject to conditions, if that were to occur. It appears that Mr Hawi has a stable immediate and extended family in the area of Sydney where he formerly resided and where his wife and children continue to live. He has identified offers of employment available to him within this familial network if he is released. 26Mr Hawi's criminal history is limited and not particularly noteworthy. He has a conviction for assault occasioning actual bodily harm when aged 16 years in 1996. Relevantly in my opinion, he also has a conviction for affray arising out of the particular events on 22 March 2009. However, no other aspect of his criminal history reliably informs the assessment of an unacceptable risk on the present application. Section 17(3)(b) 27There is no controversy that the nature and seriousness of the offence do not favour Mr Hawi's application. Section 17(3)(c) 28 Section 17(3)(d) 31 Section 17(3)(e) 32Mr Hawi has never committed a serious offence while on bail. Section 17(3)(f) 33Mr Hawi does not have a pattern of non-compliance with bail acknowledgements, bail conditions, apprehended violence orders, parole orders or good behaviour bonds. Section 17(3)(g) 34Predictions about the date of any re-trial are imprecise. They are influenced by the current state of listings for criminal trials in this Court as well as the related issue of the anticipated length of the re-trial. I assume without confirmation that the trial will take less time than the original trial, but I am unable to say, and I have not been told, how much shorter the trial may be. It will undoubtedly take many months of court time and be correspondingly difficult to list. I would be very surprised if the re-trial could be scheduled to commence before the start of the law term in 2015. I suggested as much during argument and was not contradicted. 35Mr Hawi has been in custody unrelated to any other offence or sentence since 16 November 2012. By the time his re-trial commences he will have been incarcerated with that status for something in excess of two years. Taken literally, the relevant provision is only concerned with prospective incarceration, and not an applicant's time in custody before today. It is difficult, however, to form conclusions about the length of time that Mr Hawi is likely to spend in custody if bail is refused, or its particular significance in this case, without at least a backward glance to some extent. 36It seems to me that the prospect of at least eight months in custody, especially eight more months in custody, if bail is not granted, is a factor that favours Mr Hawi. This is particularly so considering that Mr Hawi has in effect been on remand for more than one year and seven months so far. Section 17(3)(h) 37It is inevitable that Mr Hawi will be given a custodial sentence if he is convicted of the murder or manslaughter of Mr Zervas. Section 17(3)(i) 38This provision is not presently relevant. It appears to be based upon the proposition that success on appeal, whether with respect to conviction or sentence, would mean that the applicant for bail would be likely to be released. Continued incarceration in those circumstances can be seen to be offensive to the notion that the applicant for bail should spend time in custody when the foundation for incarceration appears likely to be set aside. 39That is not the present case. Mr Hawi has been ordered to stand trial again. This particular provision is not helpful to the current discussion. Section 17(3)(k) 40It would seem to be uncontroversial that every applicant for bail would find access to legal advice and preparation for a long trial in particular to be more convenient if unrestricted by conditions in gaol. Mr Hawi submitted that he needed to be free to prepare for any re-trial and to obtain legal advice from counsel, who were not counsel at the first trial. This is said to be so particularly because the case is not straightforward, as the detailed judgments in the Court of Criminal Appeal demonstrate.

Consideration 41It is clear that the scheme of the Act proceeds upon the basis that the grant of bail is never altogether free of risk. It would be surprising, given the complete unpredictability of individual behaviour, if any other view could be supported. The Act requires that the Court must accept that at least some risk will always be present and that it must make an evaluation as to whether or not the risk is unacceptable. 42Sections 18, 19 and 20 should be noted. They are as follows: "18 Bail decisions possible when there are no unacceptable risks The following bail decisions can be made if there are no unacceptable risks: (a) a decision to release the person without bail, (b) a decision to dispense with bail, (c) a decision to grant bail (without the imposition of bail conditions). 19 Bail decisions possible when there is an unacceptable risk The following bail decisions can be made if there is an unacceptable risk: (a) a decision to grant bail, (b) a decision to refuse bail. 20 When can bail be refused (1) A bail authority may refuse bail for an offence only if the bail authority is satisfied that there is an unacceptable risk that cannot be sufficiently mitigated by the imposition of bail conditions. (2) Bail cannot be refused for an offence for which there is a right to release under this Part." 43With respect to Mr Hawi's likelihood of appearing at his trial I note that he has well established and significant ties to the community. He has never failed to appear. He has the benefit of a considered judgment from the Court of Criminal Appeal from which a possibly favourable view about the outcome of his re-trial is available. I do not consider that there is great force in the argument that the prospect of a custodial sentence following a conviction for either murder or manslaughter is likely to induce Mr Hawi to leave the jurisdiction or the country. He has in any event already surrendered his passport and there is no prospect of it being returned to him pending resolution of the proceedings. 44Notwithstanding that view, however, I acknowledge that there is some risk of an accused person facing trial on a serious charge, with correspondingly serious consequences, to take matters into his or her own hands. It is in a useful way difficult to analyse what might be the relationship between the theoretical strength of a case facing an accused person and the incentive to flee that it might generate. There is no doubt that Mr Hawi faces a substantial custodial penalty if convicted. There is considerably more doubt about whether Mr Hawi would choose to leave the established familial and social network that he has established and which is evident upon the material before me. 45The question of whether or not a risk is unacceptable must be a function of a number of factors, including the likelihood of the risk materialising on the one hand, and the seriousness or significance of the consequences if it does on the other hand. Whereas in the present case it may be thought that the likelihood of materialisation is small, the significance for the community and the administration of justice if it were to materialise is not. On balance, approaching the matter cautiously, I consider that the risk that Mr Hawi will fail to appear is an unacceptable risk because the likelihood of it materialising is outweighed by the seriousness of the consequences attaching to it. I am not prepared to conclude, however, that it is an unacceptable risk that cannot properly and adequately be ameliorated or mitigated by the imposition of an appropriate security condition. In this respect I note that s 26(5) of the Act constrains my ability to impose a security requirement unless I am satisfied of the existence of such an unacceptable risk. I am not satisfied that the imposition of conduct requirements alone in this case is adequate or sufficient to mitigate the unacceptable risk of Mr Hawi failing to appear. 46I am not satisfied that there is any reliable basis for concluding that Mr Hawi either has or will interfere with witnesses or evidence. I do not therefore consider that there is an unacceptable risk that he will do so. It is also apparent that the evidence in this case has been fully exposed and recorded during the course of the first trial. On one view of the matter, Mr Hawi might be expected to embrace the evidence and its identified frailties rather than the reverse. Interference with witnesses would also be inimical to Mr Hawi's position having regard to the fact that he remains the only person charged with an offence arising out of the events on 22 March 2009 whose case has not yet been concluded. Any identified or suspected approaches to witnesses would therefore be either of no apparent utility or so ill advised as to be unlikely in the extreme. 47I am also not satisfied that Mr Hawi's liberty while on bail would materially affect or enhance his ability to effect or orchestrate criminal activities or events in a way that his incarceration has so far prevented. That is not intended to be a criticism of the prison authorities so much as it is a simple recognition of the facts of life. Mr Hawi has been in regular receipt of visits while in gaol from some of his erstwhile associates. Notwithstanding that, the evidence has not identified anything in particular arising from those visits that has come to the attention of the police or prison authorities. I accept that there may be operational or public interest immunity issues that limit the Crown's ability or inclination to provide details of these matters, but the evidence before me does not even identify any such inability or disinclination. 48I do, however, consider that there is an unacceptable risk that Mr Hawi will endanger the safety of individuals or the community. That finding must in this case necessarily carry with it the associated finding that there is an unacceptable risk that Mr Hawi will commit a serious offence. This follows in my view from what the Crown has reasonably characterised as the spontaneous and unpredictable nature of the events that give rise to these proceedings. The brawl at Sydney Airport erupted and escalated in a very short space of time and without any obvious or detectable public indications that it was imminent. Mr Hawi is alleged to have been central to that eruption and his undisputed participation cannot be discounted as a basis for an unacceptable risk that similar things could reoccur. 49In that context I note that Mr Hawi's association with members of the Comancheros and certain others involved in the events at Sydney Airport appears clearly to have been central to what occurred. The Bail Act recognises the need to formulate conditions that acknowledge and anticipate any unacceptable risks that exist in respect of a particular applicant for bail. In the case of Mr Hawi, I propose to impose conditions that entirely restrict and limit his ability permissibly to contact or to associate with the individuals nominated and described in Schedule 1 to these reasons. 50I am ultimately satisfied that the unacceptable risks that I have identified can be sufficiently mitigated by the imposition of appropriate bail conditions. 51Sections 24 and 25 of the Act are important. They are as follows: "24 General rules for bail conditions (1) A bail condition can be imposed only for the purpose of mitigating an unacceptable risk. (2) Bail conditions must be reasonable, proportionate to the offence for which bail is granted, and appropriate to the unacceptable risk in relation to which they are imposed. (3) A bail condition is not to be more onerous than necessary to mitigate the unacceptable risk in relation to which the condition is imposed. (4) Compliance with a bail condition must be reasonably practicable. (5) This section does not apply to enforcement conditions. 25 Bail conditions can impose conduct requirements (1) Bail conditions can impose conduct requirements on an accused person. (2) A 'conduct requirement' is a requirement that the accused person do or refrain from doing anything. (3) A conduct requirement cannot require an accused person to provide security for compliance with a bail acknowledgment. Such a requirement (if any) is a security requirement and is subject to the rules for imposing security requirements." 52I have necessarily had regard to these provisions in formulating the conditions that I consider are appropriate and should be imposed for the purpose of mitigating the unacceptable risks that I have identified. These conditions are referred to below.

General 53It appears that the introduction of the Bail Act 2013 has attracted a great deal of public attention in some sections of the media and that it has fomented considerable interest more generally in the community. This is unquestionably something that is to be encouraged. The conclusions and decisions I have reached in this case ought to inform that debate as a small part of a continuing public discourse. 54It remains central to that debate at all times to bear in mind that the purposes of imposing sentences of imprisonment include, among other things, the punishment of offenders, the vindication of victims, the authoritative expression of public denunciation of illegal conduct and recognition of the need to deter similar offending. It is also important to observe, however, that sentences of imprisonment are only imposed upon offenders who have committed offences and who have been adjudged to be guilty following a trial, or who plead guilty beforehand. They are not imposed upon anyone else. It is of course a necessary part of the criminal justice system that suspected offenders also might find themselves in custody on remand awaiting trial. Imprisonment for these people is not intended to serve any of the purposes of sentences imposed upon convicted criminals. The power of the courts to grant bail is effectively limited to such people. 55Indeed, consistently with the presumption of innocence, there is something manifestly very troubling about the avoidable incarceration of people charged with offences, but not yet convicted, beyond the requirement that society should be protected from any unacceptable risks associated with their release, if such risks can be identified. It is regrettably not unknown for people to spend some years in gaol, bail refused, only to be later acquitted at trial. The Bail Act endeavours to strike a balance between the need to protect the community from unacceptable risks associated with the release of people charged with offences on the one hand, and the need to respect the liberty of these citizens as they await their trial on the other hand. Neither side of that equation is necessarily or obviously entitled to more weight than the other. 56It is naturally and critically important that every individual is treated individually and that we as a society never rush to general conclusions about whether an arrested person is guilty, or will be convicted, of an offence with which he or she is charged. The society in which we all live ought strenuously to turn its face against the making of unproved assumptions about guilt or innocence, or worse still, automatically and unquestioningly depriving people of their liberty, or continuing to do so, unless or until the assumptions are made good. 57I have attempted to bear these things closely in mind in attending to the competing contentions in this case.

Orders 58I make the following orders:

Bail is granted to Mahmoud Hawi subject to the following conditions upon his conduct while at liberty on bail: (1)To be of good behaviour. (2)To live at xxx. (3)To report daily between the hours of 10.00am and 6.00pm to the officer in charge of the Police Station at Rockdale. (4)To appear at the Supreme Court on 4 July 2014 and thereafter as required. (5)Whilst residing at xxx, not to be absent from that address between the hours of 8.00pm and 6.00am. (6)xxx, being an acceptable person, is to enter into an agreement with security under which xxx agrees to forfeit the sum of $500,000 if Mahmoud Hawi fails to appear before court in accordance with the bail acknowledgment. (7)xxx, being an acceptable person, is to enter into an agreement with security under which xxx agrees to forfeit the sum of $200,000 if Mahmoud Hawi fails to appear before court in accordance with the bail acknowledgment. (8)Not to communicate or associate in any way other than through his legal adviser with any of the persons listed in SCHEDULE 1 to these conditions or to attend any of the premises listed in SCHEDULE 2 to these conditions. (9)Not to communicate, directly or indirectly, with any person whom he has received notice is, or is likely, to be called by the Crown at his trial. (10)Not to apply for a new passport or other travel document. (11)Not to go within one kilometre of any airport or recognised point of departure for overseas. (12)To present himself at the front door of xxx at the direction of any police officer to confirm his compliance with the curfew condition, provided that such direction may only be given by a police officer who believes on reasonable grounds that it is necessary to do so, having regard to the rights of other occupants of the premises to peace and privacy. SCHEDULE 1 SCHEDULE 2
I grant liberty to apply on 24 hours' notice.
I direct that an unredacted form of this judgment is not to be published, other than to the Attorney General, until further order.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 21 November 2014

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