Hawi v R

[2014] NSWCCA 83

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:

Hawi v R [2014] NSWCCA 83

Hearing dates:

18 July 2013

Decision date:

16 May 2014

Before:

Bathurst CJ at [1]; Price J at [381]; McCallum J at [471]

Decision:

1. The appeal be allowed.

2. The verdict of the jury be set aside and

the conviction quashed.

3. There be a new trial.

Catchwords:

CRIMINAL - conviction - whether verdict unreasonable - whether jury verdicts inconsistent - whether open to jury to be satisfied beyond reasonable doubt as to the appellant's guilt on the evidence - advantage of hearing and seeing evidence at trial

CRIMINAL - directions to jury - whether failure to leave provocation - whether evidence raised defence - whether subsumed by self-defence - substantial miscarriage of justice

CRIMINAL - procedural fairness - principle of open court - exceptions - jury deliberations - what constitutes jury deliberations - whether judge should have disclosed content of communication between judge and jury - s 68B Jury Act

CRIMINAL - jury directions - manner of jury deliberation on alternative charges

JUDGMENT AND ORDERS - Court of Criminal Appeal - no majority as to orders -need for outcome - method adopted - least unsatisfactory outcome

Legislation Cited:

Contracts Review Act 1980 (NSW)
Crimes Act 1900 (NSW), ss 23 and 421
Criminal Appeal Act 1912 (NSW), ss 3, 6 and 21A
Fair Trading Act 1987 (NSW)
Federal Court of Australia Act 1976 (Cth), s 16
Judiciary Act 1903 (Cth), s 23
Jury Act 1977 (NSW), ss 55F, 56 and 68B
Mental Health Act 1990 (NSW)
Migration Act 1958 (Cth), s 503A
Senior Courts Act 1981 (UK), s 55
Supreme Court Act 1970 (NSW), s 45

Cases Cited:

Arbest Pty Ltd v State Bank of New South Wales Ltd [1996] NSWCA 19; (1996) ATPR 41-481
Attorney General for New South Wales v Barr (Court of Appeal (NSW), 11 October 1991, unrep)
Black v R [1993] HCA 71; (1993) 179 CLR 44
Burrell v R [2007] NSWCCA 65, (2007) 190 A Crim R 148
CES and Another v Superclinics (Australia) Pty Ltd and Others (1995) 38 NSWLR 47
Evans v Minister for Immigration and Multicultural and Indigenous Affairs and Another [2003] FCAFC 276; (2003) 135 FCR 306
Gilbert v The Queen [2000] HCA 15; (2000) 201 CLR 414
Government Insurance Office of New South Wales v Rosniak (1992) 27 NSWLR 665
Hayes v Marquis [2008] NSWCA 10
HML v The Queen [2008] HCA 16; (2008) 235 CLR 334
Huynh v R [2013] HCA 6; (2013) 87 ALJR 434
Lexington Constructions Pty Ltd v Coyne (Court of Appeal (NSW), 24 December 1992, unrep)
Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559
Likiardopoulos v The Queen [2012] HCA 37; (2012) 247 CLR 265
M v The Queen [1994] HCA 63; (1994) 181 CLR 487
MacKenzie v The Queen [1996] HCA 35; (1996) 190 CLR 348
Masciantonio v R [1995] HCA 67; (1995) 183 CLR 58
McAuliffe v The Queen [1995] HCA 37; (1995) 183 CLR 108
MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606
New South Wales Medical Defence Union Ltd v Crawford (No 3) (Court of Appeal (NSW), 23 September 1994, unrep)
O'Brien v Tanning Research Laboratories Inc (1988) 14 NSWLR 601
Osland v The Queen [1998] HCA 75; (1998) 197 CLR 316
Pippos v Craig (1993) 1 VR 603
R v Aouli [2011] NSWSC 1393
R v Gorman [1987] 2 All ER 435; 1 WLR 545
R v Hawi [2012] NSWSC 332
R v Hawi & Ors (No 31) [2011] NSWSC 1677
R v Menzies [2012] NSWSC 158
R v Pearson [1996] 3 NZLR 275
R v Pirini [2011] NSWSC 1395
R v Potier [2005] NSWCCA 336
R v Robinson [2000] NSWCCA 59; (2000) 111 A Crim R 388
R v Shama [1990] 2 All ER 602; [1990] 1 WLR 661
R v Smith [1982] 2 NSWLR 608
R v Stone, Unreported, Court of Appeal Criminal Division England and Wales, 13 December 1954
R v Wilson [2005] NSWCCA 112; (2005) 153 A Crim R 257
R v Yuill (1994) 34 NSWLR 179; (1994) 77 A Crim R 314
SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400
Skulander v Willoughby City Council [2007] NSWCA 116; (2007) 73 NSWLR 44
Stanton v R [2003] HCA 29; (2003) 77 ALJR 1151
Stingel v R [1990] HCA 61; (1990) 171 CLR 312
The Perpetual Trustee Company (Ltd) v Tindal and Others [1940] HCA 14; (1940) 63 CLR 232
The Queen v Ashwell (1885) 16 QBD 190
Tsivinsky v Tsivinsky (Court of Appeal (NSW), 5 December 1991, unrep)
Van Den Hoek v R [1986] HCA 76; (1986) 161 CLR 158
Westpac Banking Corporation v Tomassian (1993) 32 NSWLR 207
Woolworths Ltd v Kelly (1991) 22 NSWLR 189

Category:

Principal judgment

Parties:

Mahmoud Hawi (Appellant)
Crown (Respondent)

Representation:

Counsel:
B Walker SC / G A Bashir / D Barrow (Appellant)
P Ingram SC (Crown)
Solicitors:
AHA Taylor Lawyers (Appellant)
Solicitor for Public Prosecutions (Crown)

File Number(s):

2009/50087 2009/52582

Publication restriction:

If there is to be a retrial, judgment should not be posted on the internet until after such trial. Non-publication of order of anything that would identify witnesses known as SP and AL.

 Decision under appeal 

Jurisdiction:

9111

Before:

R A Hulme J

File Number(s):

2009/50087
2009/52582

Judgment

BATHURST CJ:

Heading	Par
The persons involved	[9]
CMC members on trial with the appellant	[9]
CMC members not tried with the appellant	[16]
HA members involved	[23]
The evidence	[32]
The flight to Sydney	[32]
The affray at Gate 5	[51]
The riot and fatal assault	[93]
(1) Witnesses who described the events in detail	[103]
(2) The evidence of the informers AL and SP	[158]
(3) Witnesses who provided general descriptions	[169]
The appellant's evidence	[207]
Mr Menzies' evidence	[238]
CCTV footage of the riot and fatal assault	[263]
Grounds 1 and 2 of the grounds of appeal	[267]
The appellant's submissions	[269]
The Crown's submissions	[300]
Consideration	[307]
Did the appellant strike the deceased with a bollard?	[316]
Liability on the basis of joint criminal enterprise	[329]
Disposition of the appeal	[350]
Does s 21A(2) of the Criminal Appeal Act apply in these circumstances?	[352]
Other options	[366]
(a) Expanding or reconstituting the Court	[366]
(b) Consideration by me of Ground 3	[370]
(c) Allowing the jury verdict to stand	[372]
(d) The junior judge deferring to the senior judge	[373]
(e) A result reflecting the "highest common denominator"	[375]

1. The events the subject of this appeal arise out of an affray and riot which took place at Sydney Domestic Airport on 22 March 2009 involving members of two rival motorcycle clubs, the Comanchero Motorcycle Club (CMC) and the Hells Angels Motorcycle Club (HA). In the course of what occurred a member of the HA, Anthony Zervas (the deceased), was killed.

1. As a consequence, Mahmoud Hawi (the appellant) and five other members of the CMC, Christian Menzies, Ishmail Eken, Usama Potrus, Farres Abounader and Zoran Kisacanin were each charged with the murder of the deceased. They were also charged with participating in a riot.

1. After a trial which took place between 24 May 2011 and 2 November 2011, the appellant was convicted of murder. All five co-accused were acquitted of the charge.

1. Manslaughter was left to the jury. The jury was unable to agree on a verdict in relation to Messrs Menzies and Abounader but acquitted the remaining co-accused.

1. The appellant and his co-accused were charged with riot in addition to murder. Ultimately, no verdict was sought against Messrs Hawi, Menzies or Abounader, whilst Messrs Eken, Potrus and Kisacanin were found guilty of this offence.

1. The charges referred to above related to events which occurred in the departure hall of Terminal 3 at Sydney Domestic Airport (the departure hall). Prior to this event an altercation between members of both clubs had taken place outside Gate 5 of Terminal 3 (Gate 5). Messrs Hawi, Menzies, Eken and Kisacanin were also charged with affray arising out of that incident. Only Messrs Hawi, Menzies and Kisacanin were found guilty. A member of HA (David Padovan) was charged with riot (in the departure hall) and affray (in the departure hall and outside Gate 5), but found not guilty.

1. The appellant appealed against his conviction for murder. As one of the grounds of appeal was that the verdict was unreasonable, it is necessary to set out in detail the background facts and evidence as it emerged at the trial.

1. It is convenient to deal first with evidence describing the various participants in the events of 22 March 2009, then the events which took place on a flight from Melbourne to Sydney (QF430), the events outside Gate 5 and finally, the riot which took place in the departure hall where the deceased was killed.

The persons involved

CMC members on trial with the appellant

1. There were 12 members of the CMC involved in the incident. However, not all of them were tried with the appellant. The identity and description of the appellant and other five CMC members tried with him can be summarised as follows.

1. The appellant was 28 years of age at the time of the incident. He was the National President of the CMC. Biometric details of the appellant contained in the jury bundle state that he was about 178 cm tall. Images from CCTV footage taken at the time of the incident and photographs taken by police on 6 April 2009 show the appellant as very muscular and having a large tattoo on his left shoulder that ended below his left ear. During the events of 22 March 2009 the appellant was distinctly dressed in a short-sleeved white shirt with black text across the front. He was wearing long white pants with black shoes.

1. Biometric details of Mr Menzies contained in the jury bundle state that he was 26 years of age at the time of the incident and 191 cm tall. He was a member of the CMC. Images from CCTV footage taken at the time of the incident and photographs taken by police on 27 March 2009 show him to be of Aboriginal appearance, of solid build, with short dark hair, with a tattoo of the letters "ACCA" on his neck under his chin and with large tattoos on both forearms. During the events of 22 March 2009 Mr Menzies was wearing a black t-shirt with a motif on the front and white text on the back, grey tracksuit pants and white shoes.

1. Biometric details of Mr Eken contained in the jury bundle state that he was 26 years of age at the time of the incident and was 197 cm tall. He was a member of the CMC. Images from CCTV footage taken at the time of the incident show him to be of medium build, of Middle Eastern appearance and with short dark hair and facial stubble. During the events of 22 March 2009 Mr Eken was wearing a black CMC t-shirt with a yellow logo on each sleeve and on the front. A yellow "1" was on the back of the shirt. Mr Eken was wearing brown pants with a white motif on the left leg. He was wearing blue, silver and white Nike running shoes.

1. Biometric details of Mr Kisacanin contained in the jury bundle state that he was 22 years of age at the time of the incident and 179 cm tall. He was a member of the CMC. Images from CCTV footage taken at the time of the incident show him as being of medium build and European appearance. During the events of 22 March 2009 Mr Kisacanin was wearing a grey singlet with black upper trim, a white baseball cap, navy blue shorts and dark shoes.

1. Biometric details of Mr Potrus contained in the jury bundle state that he was 26 years of age at the time of the incident and 184.5 cm tall. He was a member of the CMC. Images from CCTV footage taken at the time of the incident and photographs taken by police on 16 October 2009 show him to be of Mediterranean appearance, of medium build and with tattoos on his chest and arms. At the time of the incident Mr Potrus was wearing a black singlet and baseball cap, black three quarter length pants and white shoes.

1. Biometric details of Mr Abounader contained in the jury bundle state that he was 27 years of age at the time of the incident and 171 cm tall. He was a member of the CMC. Images from CCTV footage taken at the time of the incident and photographs taken by police on 3 July 2009 show him to be of solid build, of Mediterranean appearance and with tattoos on his chest, arms and back. At the time of the incident Mr Abounader was wearing a white singlet with a motif on the front, sunglasses, a gold neck chain, knee length black shorts and white shoes.

CMC members not tried with the appellant

1. The following people were members of the CMC and involved in the events at the Sydney Domestic Airport, however they were not tried at the same time as the six people described above.

1. Biometric details of SP contained in the jury bundle state that he was 32 years of age at the time of the incident and 167 cm tall. He was a nominee member of the CMC. Images from CCTV footage taken at the time of the incident and photographs taken by police on 8 July 2009 show him to be of muscular build, of Pacific Islander appearance, with short dark hair and with tattoos on his upper right arm and a large tattoo on his left shoulder that extended to his lower forearm. At the time of the incident SP was wearing a black singlet with white writing on the chest, light coloured knee-length shorts and white shoes.

1. Biometric details of Maher Aouli contained in the jury bundle state that he was 28 years of age at the time of the incident and 181 cm tall. He was a member of the CMC. Images from CCTV footage taken at the time of the incident and photographs taken by police on 12 August 2009 show him to be of thin build, of Middle Eastern appearance and with short dark hair. At the time of the incident he was wearing a black short-sleeved polo shirt, grey tracksuit pants with a white stripe down each leg.

1. Biometric details of Pomare Pirini contained in the jury bundle state that he was 21 years of age at the time of the incident and 185.4 cm tall. He was a member of the CMC. Images from CCTV footage taken at the time of the incident and photographs taken by police on 11 August 2009 show him to be of medium build, muscular, of Pacific Islander appearance and with short dark hair. At the time of the incident he was wearing a black long-sleeved polo shirt with an aqua coloured t-shirt underneath, navy shorts with three vertical stripes down each leg and white and blue running shoes.

1. Biometric details of Tiago Costa contained in the jury bundle state that he was 29 years of age at the time of the incident and 186 cm tall. Images from CCTV footage taken at the time of the incident and photographs taken by police on 3 July 2009 show him to be of muscular build, with short hair that was longer at the back and with tattoos on his arms. During the events of 22 March 2009 Mr Costa was wearing a black t-shirt with a "9" motif on the front, three-quarter length white shorts and white shoes.

1. Biometric details of AL contained in the jury bundle state that he was 40 years of age at the time of the incident and 181.5 cm tall. He was a nominee member of the CMC. Images from CCTV footage taken at the time of the incident and photographs taken by police on the same day show him to be of large build, of Pacific Islander appearance, with short dark hair and a moustache. During the incident he was wearing a blue Hawaiian shirt and knee-length dark shorts.

1. Biometric details of Francesco La Rosa contained in the jury bundle state that he was 37 years of age at the time of the incident and 175 cm tall. He was a member of the CMC. Images from CCTV footage taken at the time of the incident and photographs taken by police on the same day show him to be of an obese build, of Mediterranean appearance and having a small goatee beard. During the incident Mr La Rosa was wearing a black t-shirt with a white and yellow motif across the chest, together with dark coloured tracksuit pants.

HA members involved

1. The following eight persons were associated with the HA and were involved in the events in the departure hall. Biometric details contained in the jury bundle state that the deceased was 29 years of age at the time of his death and 161 cm tall. Images from CCTV footage taken at the time of the incident show him to be of thin build, of European appearance and with short dark hair. At the time he was wearing a grey t-shirt with white writing across the chest, a dark coloured hooded top, knee-length black shorts and white shoes. He had a bandage around his right calf.

1. Biometric details of Peter Zervas contained in the jury bundle state that he was 32 years of age at the time of the incident. He was a member of the HA. Images from CCTV footage taken at the time of the incident and photographs taken by police on the same day show him to be of solid build, medium height, of European appearance, with short dark hair and HA tattoos around his neck, chest and on his right arm. He also had a coloured tattoo on his left shoulder. At the time of the incident he was wearing a green HA singlet with a motif on both the front and back, and light blue tracksuit pants with two white vertical stripes down each leg.

1. Biometric details of Derek Wainohu contained in the jury bundle state that he was 51 years of age at the time of the incident. He was the President of the HA. Images from CCTV footage taken at the time of the incident show him to be of a thickset build, medium height, of Pacific Islander appearance and with a moustache. At the time of the incident he was wearing a black HA t-shirt with a motif of two wings on the front, dark jeans and carrying a sports bag.

1. Biometric details of Musa (Phillip) Ovalle contained in the jury bundle state that he was 25 years of age at the time of the incident and 186.5 cm tall. Images from CCTV footage taken at the time of the incident and photographs taken by police on the same day show him to be of medium build, of Middle Eastern appearance and with short dark hair and some facial hair. He was wearing a dark short-sleeved shirt and dark coloured pants.

1. Biometric details of Mr Padovan contained in the jury bundle state that he was 25 years of age at the time of the incident and 175 cm tall. Images from CCTV footage taken at the time of the incident and photographs taken by police on the same day show him to be of Mediterranean appearance and muscular build. During the incident at Gate 5 Mr Padovan lost his shirt. He was otherwise wearing a white baseball cap, dark coloured shorts and white shoes. Mr Padovan was the only HA member to be tried with the appellant and the five other co-accused CMC members.

1. Biometric details of Tom Baker contained in the jury bundle state that he was 48 years of age at the time of the incident. Images from CCTV footage taken at the time of the incident show him to be of medium build, of medium height, of Caucasian appearance and with short dark hair and a goatee beard. He was wearing a dark coloured jumper, a black cap, blue denim jeans and dark shoes.

1. Biometric details of Peter Martin contained in the jury bundle state that he was 41 years of age at the time of the incident. Images from CCTV footage taken at the time of the incident show him to be of medium build, of Caucasian appearance and with a beard. He was wearing a hooded red jumper with "Soho" written in white across the chest and pale blue jeans.

1. Biometric details of Elias Khoury contained in the jury bundle state that he was 20 years of age at the time of the incident. Images from CCTV footage taken at the time of the incident show him to be of medium height, of Middle Eastern appearance and having a thin build. He was wearing a blue long-sleeved hooded jumper, grey knee-length shorts and white shoes.

1. What is notable from these descriptions is that the appellant was highly recognisable. He was the only person wearing a white shirt, although Mr Abounader was wearing a white singlet and Mr Kisacanin a grey singlet. More significantly, the appellant was the only person wearing white pants.

The evidence

The flight to Sydney

1. The aircraft which operated QF430 was a Boeing 767 with seven seats in each row in a configuration of two-three-two, marked A-K from left to right.

1. Five members of the CMC were on the plane, including the appellant and Mr Menzies. The appellant and Mr Menzies were in seats 44D and 44F respectively. The other CMC members were in seats 35K, 43F and 44E.

1. Mr Wainohu, the President of the HA, was also on the plane occupying seat 39K. Ms Rebecca Ketelhohn, a flight attendant, said after the plane had landed three of the men including the appellant, moved directly in front of her to get out of the plane. She said she saw the appellant call out a word to a passenger in the opposite aisle and make a gesture, pulling down his eyelid and then pointing to the person in question. She said the person in question repeated the action.

1. Josephine Stevenson, a passenger sitting in seat 32K, gave evidence about a passenger who she described as about 5 feet 10 inches, thickset, of Middle Eastern appearance, aged between 20 and 30 years, wearing blue jeans and a white singlet. She said he was walking up and down the plane and the second time he did so, he pointed to a person behind her and said words in a different language. She said he was aggressive.

1. Matthew McCrone, seated in seat 34J, described four men boarding the plane, one of whom he described as an alpha male. He said the alpha male and one man came down the aisle furthest from him, while the other two went down the aisle closest to him. He described the alpha male as wearing a white t-shirt and blue tracksuit pants. He said he was of Middle Eastern appearance, of solid build and had a tattoo around a bicep. He said that he was moving up and down the aisle. He said that at one stage when the man was in front of him, he stopped and pointed. He heard the words "Before we land in Sydney you mother fucker".

1. Mr McCrone agreed the man in question seemed to be pointing and speaking to someone in seat 35K. He was not told that Mr Aouli was sitting in that seat. He agreed he would not be able to see persons in row 44 from where he was sitting as his view was blocked by a partition.

1. It should be noted that the descriptions given by Ms Stevenson and Mr McCrone did not match the clothing of any of the persons said to be involved in the incidents.

1. Rosemary Pagano was seated in seat 39J next to Mr Wainohu. She saw three men walking in the opposite aisle. She said one was wearing a white shirt and was tall and the other was wearing an olive t-shirt and about the same height. She subsequently saw the man in the white t-shirt staring at the man next to her with an angry expression. Mr Wainohu then started sending and receiving texts.

1. Samantha Richards was seated in seat 33K. She saw two men of Middle Eastern appearance. She described one as very "muscly", having a shaved head and wearing a tight black singlet or shirt. She subsequently saw another man stopping diagonally from her and speaking in Arabic to someone behind her. She said he was angry. She described him as being in his late 40s, shorter than the other two men and of slim build. She agreed that she had given a different description to the police.

1. Judith Auton was seated in seat 35J next to Mr Aouli. She said he made a phone call in a foreign language but she heard "Qantas domestic". She also heard him make another phone call in which he said that "the plane arrives at 1.30".

1. Jonothan Patterson was seated in seat 40J. He saw a thickset man of Maori descent in front of him. Subsequently he saw three men whom he described as large and thickset of Maori appearance. He noticed that one of the men was wearing a CMC t-shirt.

1. Andrea Halbert noticed four men of Middle Eastern appearance wearing casual clothes when she was checking-in for flight QF430. She was seated in seat 38B. She saw four men get onto the plane and saw at least two of them talk to another man. There was pointing and they did not appear friendly.

1. Trudi McEntee was seated in seat 44A. She observed the passengers in seats 44D, 44E and 44F. She described the man in 44D as very big and dark-skinned, wearing a white tank top with a distinctive tattoo down his left arm. She also said he was wearing pale tracksuit pants with a stripe down the side.

1. Ms McEntee described the man in seat 44E as well-built, stocky, muscular, with neat hair and a thin moustache and wearing a black polo shirt with yellow stitching and an emblem.

1. Ms McEntee observed the men were in a hurry when they left the aircraft. She heard one of them say "It's time, time man".

1. Matthew Jones was seated in seat 43F. He described four men of Middle Eastern descent, one dressed in a white tracksuit. One of the men, who was of Middle Eastern appearance and wearing a long-sleeved black top, sat next to him. He gave evidence that the man in white said "Get the guys to meet us at the other end".

1. Nathan Anderson was seated in seat 45D. He said the persons in the row in front of him were of slightly above average height and of Middle Eastern appearance. The man in seat 44E (Mr Eken) was wearing a black CMC t-shirt. The man in seat 45F (Mr Menzies) had a "spider web's tattoo" on his elbow. When the plane landed the three men in front of him got up quickly and moved off the plane faster than any other passengers.

1. Lucinda Milton was seated in seat 40D. She noted between two and four men of Middle Eastern appearance. In her police statement she said they all had short dark brown or black hair and were wearing t-shirts, one was black and one was white. She said the person in the white t-shirt may have been wearing light coloured pants or three-quarter length shorts. At one stage she saw the man in white staring at a person near her boyfriend.

1. Ian Schilling was seated in seat 43D next to Mr Pirini. After the plane landed he saw him talking to a number of other men. One of the men had a mobile phone and was referring a message on the phone to the others on the plane.

The affray at Gate 5

1. A number of passengers gave evidence of the events which occurred outside Gate 5.

1. Ms Pagano, to whose evidence I have already referred, gave evidence that when she got off the plane she heard yelling and scuffles. She saw that the man who was sitting next to her on the plane (Mr Wainohu) was part of a group of men who were "overseeing him". She estimated there were 30 men. She saw kicking, punching and there was yelling and screaming. She noticed the fight was moving towards her and she went into the Guess shop. She saw the man who was sitting next to her walk away with two men, one of whom had no shirt and was wearing shorts.

1. Ms Halbert said that after she disembarked the plane she went into the Watermark Bookshop. She said that whilst she was in the bookshop she heard a lot of commotion and screaming. She saw a man who appeared to be being chased by some people. She then saw other people running in the opposite direction.

1. Ms McEntee said that as she came out of the aerobridge she saw men fighting and wrestling. She saw the men from seats 44D, 44E, 43D and 43E. The man from seat 44D (the appellant) was holding a man she had not seen before. She said he was holding him and trying to hit him. The man from seat 44D punched the man on the side of his face whilst holding him. She said the men she saw seated in seats 43D and 43E were trying to get to the man being held down and keep the other men off the man from seat 44D. The man from seat 44D and the other men were holding the man on the ground and one of them kicked him aggressively in the kidney area. The man on the ground slipped out of his t-shirt and got away from the men who were chasing him.

1. As Mr Jones emerged into the Gate 5 area he saw a man in white approach two men near a "booth". He saw some men coming down the alleyway from the right of the gate and a fight broke out. He saw a man with his shirt off on the ground and a further person was kicking him in his chest. He saw the man in white walking to the exit with "maybe three" other men.

1. Andrew Dudgeon was one of the first off the aerobridge. He saw a number of men by a buggy. When the three men he observed on the plane disembarked, he saw a fight break out. He said that he saw a man who was sitting on the buggy attacked from his left and punched in the head quite violently. He went down on one knee and was kicked in the head by the person who punched him. He said the man who punched him on the ground was not one of the three men on the plane that he had observed earlier.

1. Mr Anderson arrived off the aerobridge and saw a group of 15 to 25 men. He saw two men on the ground that were being punched and kicked. He said the main group excluding the two on the ground walked off. The other two then got up and walked in the same direction but at a slower speed.

1. Shen Li Chong worked at a store next to Gate 5. She heard yelling. She saw one man looking angry and punching another man. After the man who was punched fell to the ground, the angry man and two other men ran off. The man on the ground got up, took his bag and walked forward.

1. Dimitra Kriticos was a security officer in Terminal 3. Between 1.20 and 1.40 pm approximately ten men approached the screening area for screening. They asked where Gate 5 was and went through the screening. Two of the men remained behind and did not go through the screening. After five or ten minutes the men came back through the bi-fold doors, running. She could not say how many men she saw. Some time later, whilst working, she saw three or four men getting into a cab. She took down the number plate "T412". Prior to that she had heard screaming at the other side of the terminal.

1. Ms Kriticos conceded in cross-examination, after watching CCTV footage, that the group she saw were walking not running.

1. Alfred Dokli was at Gate 5 when he saw a group of about ten men and a group of about three men fighting each other. He saw a punch and the two groups started running in the same direction that he was going.

1. Eyiram Dokli was at a store near Gate 5. She saw a group of three men and a group of ten men yelling at each other. She heard, "Not in here. Let's take it outside".

1. Eyiram Dokli described a man with a bumbag, t-shirt and baseball cap in the group of ten men. She said most of the group of ten were Middle Eastern but one was an Islander. One of the men of Middle Eastern appearance was wearing a white singlet and white tracksuit.

1. Eyiram Dokli saw a fight break out and moved away.

1. Eyiram Dokli looked back and saw a person on the ground being kicked by the group of ten men. After that she saw that the group of ten men and the group of three men were "back together". She heard the man in the white shirt and tracksuit say, "Next time we see you, you're going to have bullets through you. You're a dead man walking". She said that when he said this he was pointing to three men who were standing on their own.

1. Eyiram Dokli agreed she told the police that she was pretty sure the man who said, "Not in here take it outside" was one of the group of ten.

1. Edem Dokli saw two men of Anglo Saxon appearance and one of Middle Eastern appearance. She heard yelling, "Not in here, not in here. Let's take this outside". She then saw a group of five or six men of Middle Eastern appearance. One stood out. He was tall, wearing a white tank top that said "Everlast" and shorts. She saw the man in the "Everlast" shirt push over one of the men in the group of three. That man was wearing a red t-shirt.

1. Jeanne Dunn saw fighting whilst she was in the Guess shop. She saw two men punching each other and the shorter man took his t-shirt off.

1. Jeffrey Searle was helping passengers who required the use of a wheelchair. He was standing at Gate 5. He saw a group of men coming off the flight, followed by another two or three.

1. Mr Searle saw one man punch another man in the face. The man fell to the ground. A fight broke out.

1. Mr Searle agreed that in a statement to the police he described a male wearing a white t-shirt with black writing across it and with blue denim jeans, and another male wearing a dark t-shirt with a jacket or jumper and blue denim jeans. He saw the man in the white t-shirt punch the other and hit him in the head. He confirmed in cross-examination that another man he had described as wearing a black t-shirt and white pants was not the one who threw the punch.

1. Margaret McKay was outside the Watermark Bookshop. She saw a young man being hit. He was about 28 to 32 years of age, of Middle Eastern appearance, 5 feet 9 inches tall and wearing light brown pants, white sneakers and the remains of a white or cream shirt.

1. The other two men in the fight were of the same age and background. Ms McKay described a ferocious fight in which there were powerful punches and kicks. Other men gathered around after the fight. The young man on the ground walked off with two other men in the direction of Gate 4. The two other men who had been in the fight walked off with a group of five to eight men.

1. Karen Ford was near Gate 5. She heard screaming and saw a group of men brawling. A man on the ground was being punched and kicked. She said he was "an Islander". He did not have a shirt on.

1. Christie King was near Gate 5 when she heard "a loud racket" and saw ten men running towards the exit chasing someone. They huddled around a person who then got away with no t-shirt on. One of the men said, "We'll get you, you cunt".

1. Jason Stephenson saw and heard a lot of commotion, shouting and swearing. He saw 10 to 12 people shouting in the direction of Gate 5. One was over six feet tall; another was five feet seven inches or five feet eight inches tall. Later he saw a man running towards Gate 5 without a shirt.

1. Ian Dunn was waiting to board a flight near Gate 5. He saw two males fighting. One was swinging punches and a man was slumped on the ground. Another man who was six feet two inches tall and strongly built was watching. That man approached and landed a single forceful blow to the man on the ground.

1. Jeff Gordon saw a man without a t-shirt being followed by a group of about seven men. The man without the t-shirt was about five feet eight inches tall, well built, with a tattoo on the back of his neck. As the group moved past him, he heard one man say, "We will fix you up".

1. After Sarah Osborn disembarked from QF430 she heard a woman screaming. She subsequently saw eight to ten men pushing and shoving. She then saw a group of three men to her right and a group of five or six men moving towards the exit.

1. In the second group there was a very tall man of Middle Eastern appearance, wearing a blue or grey dark coloured jumper with a collar and tracksuit pants that were a lighter blue or grey. Ms Osborn saw that man point to the other group and say, "You're a dead man, you're fucking dead, you've got bullet holes in you".

1. Louis Youssef saw ten men fighting, punching, kicking and swearing in English and Arabic. Someone said, "Not here, let's not do it here" and "Just wait till we head outside". He agreed he told police he had heard men yelling words like "Fuck you, we're going to get you, you're a fucking dog".

1. Troy Hazelden saw two men walk past him. They were both in their late 20s or 30s and athletic. One was about 5 feet 11 inches tall and wearing a blue singlet. The other was wearing three-quarter length pants and a singlet. He saw those two men start to hit another man. A scuffle broke out and the man started back-tracking and running. The man fell to the ground and got up again.

1. Ian Richardson was seated in seat 31J. After he disembarked he saw a dark-skinned man in the foetal position whilst three or four men kicked him. He described a man in a black t-shirt with a yellow and orange motif trying to break-up the incident and help the man up. This description matched that of Mr Wainohu.

1. Rhonda Richardson heard someone call the man on the ground without a shirt (who it was common ground was Mr Padovan) a "monkey".

1. Kerry Hankinson was waiting for a flight at Gate 5 when she saw six or seven men arguing loudly. One was stockier and appeared older. The Crown submitted this was Mr Wainohu. She saw this man walking back towards the others saying, "Yeah I got something for you in my bag". She heard hitting sounds or the sounds of someone falling. She looked back and saw the man, that it was submitted was Mr Wainohu, on the ground. Another man with long stringy hair was also on the ground and further back a younger man without a shirt was curled into a ball while another younger man was kicking him.

1. Clifford Kroeger said he saw a group of approximately six well-built young men punching and kicking another person.

1. Mr Kroeger said one man who appeared to be the leader of the group was muscular and wearing white pants and a white shirt. The one who was the leader pointed to the man on the ground and said, "You're dead, you're fucking dead".

1. Mr Kroeger identified the appellant as the leader of the group from a photograph.

1. Rodney Moore heard swearing over his left shoulder and heard someone say, "I've fucking got something for you". The man had a carry on bag and he and another man walked to a cart and as soon as he turned around two men hit him and he "went straight to the ground". The man who was with him was then "king hit".

1. Rebecca Porter was in the Watermark Bookshop. She saw a man, who was agreed to be Mr Padovan, with seven or ten men behind him, hitting him. After a second altercation the men appeared to let Mr Padovan go. He then met up with an older man.

1. Pierre Schweitzer saw the altercation but did not recall seeing a man with a white top and white trousers.

1. There were several other witnesses to the affray at Gate 5 (Roger Auton, Alicia Deak, Lisa Purton, Katarina Garas, Christian Avramides, Joanna Caldwell, Anne Copley Smith, Perez Sioneholo and Owen O'Shea). However their evidence does not add anything significant to the evidence described above.

The riot and fatal assault

1. CCTV footage recorded in part the movement of the participants from the vicinity surrounding Gate 5 to the departure hall. CCTV footage shows ten CMC members followed by three HA members walking towards the bi-fold exit doors. The CMC members, including the appellant, are seen looking over their shoulders. The footage was timed at approximately 1.38 pm-1:40 pm.

1. CCTV footage taken from inside the secure area shows the appellant and the other CMC members looking back. It shows the three HA members walking through the bi-fold doors and into the departure hall.

1. The CCTV footage shows the appellant and others exiting the bi-fold doors and walking east behind the economy class check-in counters. Further footage shows the CMC members meeting up with Mr Abounader and Mr Potrus and the group of 12 walking towards the check-in counters in the departure hall in the direction where the HA members are. They are seen as initially walking before speeding up to move quickly.

1. The CCTV footage then shows the deceased moving behind the counter in a westerly direction towards the CMC members followed by the other HA members. The deceased puts his hood up as he moves. At the same time the CMC members can be seen behind the check-in counters moving in an easterly direction towards where the HA members are.

1. The deceased and Mr Baker are seen to move around behind the CMC members. The appellant and other indistinguishable figures can also be seen moving at this time.

1. The CCTV footage shows that having walked behind the appellant's group, the deceased is seen rushing back towards them. The footage also shows Peter Zervas running towards the CMC group. It also shows the appellant retreating twice before the deceased is seen to run in to attack him.

1. More than 50 witnesses gave evidence in relation to the events that occurred in the departure hall on 22 March 2009. In addition, the two police informers, referred to as AL and SP, also gave evidence in relation to the incident.

1. In summary, several witnesses gave evidence of a person using a bollard whose description was in some respects consistent with that person being the appellant. Xanthe Gray described the man as wearing light coloured pants. However in her first statement to police she described the man as wearing dark coloured clothing and thought he was wearing shorts. George Teale described one of the men using balustrades as wearing "whitish pants". However, he also stated that the man was without a shirt. Karen-Ann Whyte identified a photograph of the appellant as the person who "Bashed a man to death with an instrument". However, in cross-examination she accepted she had described the man to the police as "slightly overweight with a pot belly", wearing a shirt, not a t-shirt, and that the shirt was possibly blue or pale blue in colour. John Ireland described the man as wearing white trousers and a white shirt. He also described that man as using a putting motion with the bollard. However this description and Mr Ireland's chronological recount of events did not fit with the evidence of any other witness. Marie Ireland also saw a man dressed all in white. He was leaning over the man on the ground but she could not see what he was doing. The informer SP stated that Mr Menzies hit the deceased with a bollard once or twice and the appellant struck the deceased once, although in either case he did not see the bollard connect with the deceased. However, as set out below, his evidence was the subject of extensive criticism in cross-examination.

1. There were, however, witnesses whose description of the man using the bollard was directly inconsistent with that person being the appellant. For instance, Leanne Buckingham described the person hitting the deceased with the bollard as wearing a khaki singlet. Keith Teale described the man using the bollard as short, stocky, with broad shoulders and wearing a dark pair of shorts with perhaps a white shirt. In particular, Keith Teale stated that the man using the bollard was not the man wearing white trousers. Robert Barnes described two men assaulting the man on the ground. The men appeared to be of Middle Eastern appearance and one may have been wearing a black tracksuit possibly with a white stripe on the trousers. He also referred to a man, in a white singlet with a motif on the front, yelling with another man. He stated that he did not see the man in the white top involved in the incident with the man on the ground. Judith Hanes stated that she saw three men, at least two of whom had bollards. She described one of those men as wearing a t-shirt or singlet that was either darkish blue or green. Mark Prunty stated that there were four men around a man on the ground. One of the four men was wearing a black or dark coloured singlet and grey tracksuit pants. He could not clearly describe the other three men. Bronwyn Brown described the man using the bollard as wearing black pants with a light coloured t-shirt that she thought was yellow. Steven Huggard described the man using the bollard as large, bulky and wearing very dark clothing. He also described a second man using a bollard whose clothing was also "dark and dirty". The informer AL gave evidence that Mr Menzies hit the deceased with a silver instrument that he thought was a rubbish bin. However, his evidence was also the subject of extensive criticism in cross-examination.

1. A summary of the evidence of each of the witnesses concerning the events in the departure hall is set out below. For convenience, the evidence is divided into the following broad groupings:

(1)   witnesses who described in detail the events and provided some description of the persons involved in the incident with the deceased;

(2)   the evidence of the informers AL and SP; and

(3)   witnesses who provided a general description of the events but were unable to describe those involved in the incident with the deceased.

(1) Witnesses who described the events in detail

1. Ms Buckingham was a flight attendant with Qantas at the time and was arriving at Terminal 3 to begin work when the incident took place. Ms Buckingham gave evidence that she saw three men around another (the deceased). The deceased was lying in what she described as the recovery position. Two of the men were standing behind him and one man in front of him. The two men were kicking him in his back and the third was kicking him in the front. Ms Buckingham was unable to describe any of these three men.

1. Ms Buckingham stated that there was another man standing at the head of the deceased. She described this man as wearing a khaki singlet who she had previously seen enter Terminal 3. Earlier in her evidence she stated that this man might have been of Maori or Islander ancestry, about 6 feet or 6 feet 2 inches tall and in his mid to late 20s. She stated that she saw this man pick up a bollard with both hands, raise it and hit the man on the ground with it. She stated that she saw him bring the bollard down only once before he threw it a short distance. She stated that it was the bottom or stand end of the bollard that came closest to the victim. Ms Buckingham then rendered assistance to the victim.

1. In cross-examination Ms Buckingham confirmed that the man with the bollard that she identified was wearing a singlet that exposed his shoulders and not a t-shirt. She also stated that the man had short-cropped hair, not shaved. She also confirmed in cross-examination that she had been unable to identify any person during two line-up identification parades.

1. Ms Gray was in the departure hall to catch a flight and was at an internet check-in kiosk at the time of the incident. She gave evidence that she witnessed altercations in three groups. She stated that in one altercation she saw two men fighting. One was being punched and kicked; he fell to the floor and appeared to be defending himself with his arms and legs. He was kicked in the abdominal area. Then the other man "grabbed a nearby barrier pole and stamped it over his head". She described this man as "wearing light coloured pants", in his late 20s or early 30s with olive skin and probably of Mediterranean descent. She stated that the man placed the pole on the ground and it rolled a metre or two away. She described the force used by the man as "excessive". In cross-examination she stated that she was 10 to 12 metres from the man with the bollard.

1. Ms Gray gave evidence that at a later date she was shown several packets of photographs. From those packets she selected photographs of the appellant and Peter Zervas. She stated in relation to the picture of the appellant that it "looked very familiar to someone that I had seen that day at the airport", but that she was unable to say what the man was doing at the airport.

1. Ms Gray accepted in cross-examination that in her first statement to police she described the assailant as "not Caucasian, possibly Lebanese or Mediterranean appearance, late 20s early 30s in age, he had an average build, approximately 175 cm tall with black or brown hair, he was wearing dark coloured clothing, I think he was wearing shorts". In selecting the photograph of the appellant Ms Gray also accepted that she had said "I don't know why but this guy looks familiar".

1. Mr Barnes was a pilot who was in the departure hall waiting to catch a flight to Adelaide. At the time of the incident he was standing at one of the automatic check-in kiosks but moved backwards a couple of metres as the incident continued. He gave evidence of a general brawl that was comprised of a number of small brawls. He saw metal bollards being picked up and thrown in the air. He saw someone on the ground block a bollard with his arm as it came down on to him. He then saw that particular man get up and continue fighting.

1. Mr Barnes also noticed a brawl near the glass wall where the entrance doors were located. There was a male on the ground that was being kicked and stomped. After several kicks and stomps on his body and head he appeared motionless. There were two or three men assaulting the man on the ground. They appeared to be of Middle Eastern ethnicity and one of them may have been wearing a black tracksuit possibly with a white stripe on the trousers. He gave evidence that he saw a man pick up a metal bollard, raise it over his head and smash it on to the man on the ground on his chest. He saw the bollard come up a second time and this time it came down on to his head. He confirmed that the base of the bollard was pointing towards the ground.

1. Mr Barnes described two men standing to the eastern side of the brawl. One was wearing a green singlet. He had a shaved head, was of Middle Eastern appearance and was around five feet nine or ten inches. The other had very short brown hair, a rectangular goatee, was over six feet tall, with broad shoulders and was wearing a white singlet with a motif on the front. He could not recall specifically if the man in the white singlet did anything.

1. Mr Barnes conceded in cross-examination that notes he had made shortly following the incident made no mention of a man wearing a white top. He confirmed in cross-examination that he did not see the man in the white top pick up a bollard and use it as a weapon. He accepted that at the committal hearing he gave evidence that the person using the bollard was "shorter than the man in the white T-shirt, not shorter than the man - not necessarily shorter than the man in the green T-shirt". He confirmed that he had been unable to identify any persons in two line-up parades.

1. Julie Roelandts was employed by Qantas and at the relevant time was working as a customer service agent on counter 16. She generally described the brawl. In relation to the use of the bollard she stated that a man picked it up and was shaking it trying to get it off its strapping. He lifted it over the top of his right shoulder and went to smash it down in front of him. She closed her eyes and did not see it connect. She described him as being a smaller build than the first person she saw and had a lighter coloured t-shirt on. The first person that she referred to was described as "a big person" who appeared to be of Maori ethnicity, about six feet tall, tattooed on the front of his neck and down his arms and wearing a bright shirt.

1. Trevor Brennan was in the departure hall on the day of the incident and was queuing to check-in. As a result of the proximity of the fight Mr Brennan grabbed Marie Weibrecht who was standing in front of him and they fell sideways over luggage. He looked up and saw a man unhooking one of the bollards. The man stood with the bollard over his head before walking towards the window, to the south. Mr Brennan described the man as thick set and of Islander origin, either Samoan or Maori. In cross-examination he agreed that the man was about 180-182 cm tall. He did not see the man swing the bollard. He also agreed in cross-examination that he had told police that he would recognise the man who picked up the bollard, but that he had not been asked to attend a line-up parade or to look at photographs.

1. Elizabeth Rapkins was employed by Qantas and at the relevant time was working at counter 14 in the departure hall. She stated that between 10 and 14 men were arguing and then ran between the counters. She described them generally as between "16 and 30, European, Middle Eastern". She described one man in particular as bigger than the others with very short hair, wearing a green singlet top and with a tattoo on his left arm. She also described a man wearing a silver grey hooded jacket. She saw the man wearing the green singlet pick up a silver bollard. He picked up a bollard near the front doors but she did not see what he did with it.

1. Kirsty Cutajar was in the departure hall to catch a flight with her husband and two daughters. She was sitting with her family on a bench seat that was located near a doorway. About six men who she described as having short dark hair, of Middle Eastern appearance and wearing tracksuit type clothing, walked past her. About 5 or 10 minutes later shouting commenced behind counters 10, 11 and 12. She stated that the men began to fight and also began to pick up metal bollards and hit each other.

1. Ms Cutajar described two incidents that occurred in front of her. She saw a man on the ground holding his hands up towards his face as men were kicking him. There were about three men kicking him. She also noticed two men break off to the right hand side. She described one of the men as a taller Arabic looking man with a goatee, whilst she said the other was wearing a "greeny" coloured shirt that was ripped and was also wearing lighter faded jeans and joggers. She said the latter man also had shaved short hair.

1. In relation to the man being kicked on the ground, Ms Cutajar stated that she also saw bollards being used. She could not say how many men were using bollards. Due to the fight on her right, Ms Cutajar moved backwards in her seat and her view of the man on the ground was obscured by an automatic teller machine (ATM). Three men then passed in front of her from the area where the man was lying on the ground. One man was without shoes and another wiped blood from his upper body. The latter man looked physically strong, medium build, medium height, with a goatee and well groomed. She could not describe the other two men further. The man with the ripped shirt then stumbled backwards to the injured person on the ground.

1. In cross-examination Ms Cutajar accepted that she had said there were two males "really laying into one male on the ground". However, upon reflection she felt it was more than two. She said the men kicking the man on the ground were of Middle Eastern appearance and wearing tracksuits. She could not describe the colour. She did not see the man on the ground being hit with the bollard after her vision was obscured by the ATM.

1. Keith Teale and his wife took his brother to catch a flight. At the time of the incident they were at one of the check-in kiosks in the departure hall. Keith Teale described one man being chased by another, shortly followed by a third. The first man fell to the ground and he said it was possible the second man also fell. The third man came through, picked up a bollard and hit the first man who had fallen to the ground. The man who had been knocked down was a very slight person. The man who was using the bollard was short and stocky with big broad shoulders. Keith Teale estimated his height as five feet eight inches and stated that he was wearing a dark pair of shorts. He could not be sure about his shirt, but it was perhaps white. He was possibly Middle Eastern. Keith Teale described the action of the bollard as a downward motion with the base at the bottom. He stated that he saw the man being struck with the bollard possibly two or three times.

1. Toward the end of the altercation Keith Teale was standing near one of the exit doors. A man came through the door and said to another "You've got it coming, I'll get you tomorrow". Keith Teale described the man who had spoken as "probably 6 foot plus" and wearing white trousers. Significantly, in cross-examination Mr Teale stated that the man using the bollard was not wearing white trousers. He accepted they were two different people. He was close enough to touch the man in white trousers. He also accepted in cross-examination that he was never asked to participate in a line-up parade or to review photographs.

1. George Teale had travelled to the Sydney Domestic Airport with his brother Keith Teale and his brother's wife Heather. He said that about five feet or six feet away two men had what he described as "balustrades" and were hitting another man who they had knocked to the ground. He described one of the men as probably over six feet tall, around 80 kg, olive skinned, very short hair, with no chest hair, wearing whitish pants and without a shirt. He described his build as athletic. He could not describe the second man apart from the fact that he was smaller.

1. In cross-examination George Teale accepted that his police statement referred to one of the men wearing "light coloured long pants". He also accepted that his police statement only referred to one man with a bollard. He accepted that he had said in his statement that he was fairly confident he could remember the man swinging the bollard. He was unable to identify any person when shown photographs by police. He stated that as far as he was concerned he had not been shown a photograph of the man using the bollard. He accepted that Keith and Heather Teale were within a few metres of him at the relevant time.

1. Ms Hanes was in the departure hall. She had obtained her boarding pass from one of the kiosks and at the relevant time was queuing to check-in her luggage. She saw three men, two large and one smaller, who were fighting. They crashed to the floor about three metres away from her. They got up and started to pick up the bollards and throw them. Then they moved towards the window and her view was partially obscured. She saw the smaller man fall to the ground. She was unable to describe any of the men apart from one whose shirt was torn. In cross-examination she said that she could not say for sure whether all three men had bollards, but at least two did. She said in cross-examination that the torn shirt was hanging in strips from the man's front and had a big split up the side and was either darkish blue or green. She accepted it was possible that it was a singlet. She also accepted in cross-examination that the man with the darkish blue or green shirt had a bollard.

1. Helen Bagot met a friend, Jeff Bishop, at Terminal 3 and proceeded to queue to check-in her luggage in the departure hall. She saw a group of men, about a dozen. She saw none of their faces but she did see a man wearing a green t-shirt. She saw one man pick up a bollard between the baggage check-in and the ticket console. He swung it around virtually above his head. She did not see it connect with another person. She saw the leg of a person but could not see the rest of that person because a boarding pass ticket machine was blocking her view. There appeared to be someone kneeling on the ground beside the person.

1. Ms Bagot accepted in cross-examination that CCTV footage did not show fighting between counters eight and nine as she had described. She stated in cross-examination that the man in the green shirt was the man who had picked up the bollard and swung it around his head. She remembered seeing at least another two men swinging bollards around. She described the man in the green shirt as having short to medium dark hair.

1. Shalagh McCarthy was at the departure hall to catch a flight and at the relevant time had reached the head of the queue at the economy check-in counters. She saw two men running, followed "within a beat" by another man and then a cluster of perhaps five.

1. Ms McCarthy stated that two men separated from the cluster and ran further towards the glass doors and started to pick up bollards. The two men they seemed to be chasing moved away towards the doors and one of them fell to the ground. The man who fell seemed to be in a "defensive or foetal position". One man stood next to the chest or head of the man on the ground. He had a bollard in his hands and brought it down heavily. The other person stood near the man's head and "didn't seem to prevent or interfere with what the man with the bollard was doing". The man with the bollard raised his hands to about forehead height and brought the bollard straight down with some vigour. She saw him bring the bollard down twice and then she brought her hands up and shielded her eyes.

1. Ms McCarthy described the man with the bollard as "not as chunky or compact as the others", he seemed taller, "a good figure of a man, not overweight nor slim ... but just a well proportioned man". In cross-examination Ms McCarthy said the man with the bollard was possibly the largest in the group with fair coloured short hair, not shaved, that was not black. His face was not chiselled or thin. She confirmed that she had been unable to positively identify any persons when looking at photographs.

1. Shayne O'Dwyer was a rescue medic who was in the business and Qantas Club check-in area. He saw a brawl involving 12 to 15 persons that was about 15 to 20 metres away. He saw a bollard being thrown across an area. He also saw a man lift up one of the bollards and hit a small man with it; the man holding the bollard had his back toward Mr O'Dwyer. He described the man as "about 6 foot, short hair, tattoos, T-shirt, track pants maybe, runners". He was bigger than the man who was hit, who was a "young, skinny little guy". The man with the bollard was also of dark skinned complexion. Later in cross-examination he accepted the description that he had given to police, including that the man with the bollard was of Middle Eastern appearance, dark short hair, coloured tattoos around both biceps, a ripped t-shirt, tracksuit or jogging pants and runners.

1. Mr Prunty had arrived at Terminal 3 in a taxi and was walking towards a set of glass sliding doors leading to the departure hall when he noticed a fight taking place inside. He stated that there was a group of men inside the terminal standing over another man, punching and kicking him. The man was on the floor and there were four men around him. The first was about six feet four inches, quite muscular, of Lebanese appearance, with dark hair that was short on top and a bit longer at the back and wearing a black singlet and grey tracksuit pants. He also had tattoos on his arm. He was holding a steel bollard and hitting the man on the floor all over his body. There was a second male who was also hitting the man in much the same way. He was shorter, about six feet tall and of Lebanese appearance. In cross-examination Mr Prunty accepted that his statement to police stated that the first man was wearing a dark coloured singlet, not a black singlet.

1. Mr Prunty could not see the second man as clearly because of the angle he was at. He described the other two men as Lebanese in appearance. They were punching and kicking the man and holding the man on the floor. He was defending himself but then he "just sort of went limp". The first man then yelled and all four men walked away from the man towards the centre of Terminal 3 where they met up with another four men. They then exited the building. In cross-examination Mr Prunty said that the man on the ground was pushed up against a bench and was hit with the bollards ten or more times. In cross-examination he said that he was more than five metres from the man on the ground. Mr Prunty accepted in cross-examination that he had reviewed photographs and had been unable to identify any person.

1. Zhenya Welyczko was at a check-in kiosk when she heard some male voices yelling. During the fight she was facing an elderly couple sitting on a bench. She saw a man on the ground and then another man pick up a bollard and start hitting him on the head. She saw him raise the pole at least four times. She could not give a specific description of the man holding the bollard but stated that he was of a dark complexion, dark hair, solidly built and in his 30s. Ms Welyczko would have been between 20 and 30 metres away. In cross-examination Ms Welyczko accepted that she was asked to look at photographs and recognised one face that she understood was the brother of the victim.

1. Abigail Teh was standing at one of the electronic check-in kiosks with a colleague at the relevant time. She saw around four to five men fighting. They then split into two groups. In one group, two men were attacking one other man about five metres from her. The man was being punched and he fell down to the ground and one man grabbed a metal pole and hit him on the head. She only saw one man hit him with a metal pole. There was only one other man assaulting him. He was kicking the man on the ground. She described the two men as quite tall, muscular and fair, with short hair and wearing a "casual normal T-shirt". In cross-examination she said when the man was being hit with the bollard she was about seven to ten metres away. In cross-examination Ms Teh accepted she was unable to identify any person in photographs. She could not say how many men were involved in the fight in the second group as it was behind her.

1. Ms Brown was at the departure hall to catch a flight and was standing at an e-ticket machine at the relevant time. She saw one of the men pick up a silver bollard from the ground and lift it above his head in an action as if he was cutting wood with an axe. She saw him smash the bollard to the ground three times. She described him as six feet five inches, black hair shaved at the back, with olive skin, a tattoo on his right arm from shoulder to elbow and wearing black pants with a light coloured t-shirt which she thought was sleeveless. She also thought that the t-shirt was light yellow.

1. Amanda Abbas was at the departure hall to catch a flight and was standing at one of the kiosks. She saw a group of men comprised of one Caucasian who it appeared was being chased by two men. The Caucasian man was quite small and had fair hair. She was unable to describe either of the two men chasing him. One of the men chasing him was holding a metal bollard and she saw him swing it at the smaller man. The first swing did not make contact. The action that was used was like swinging an axe.

1. Ms Abbas described a separate incident that was occurring closer to her that also involved three men. The first appeared chubby with curly black hair wearing a white shirt, the second was Mediterranean in appearance and the third was Islander, quite muscular, with tattoos and with a ridge of hair at the top of his head. In cross-examination she stated that the man in the white t-shirt was being punched by the other two in the stomach region.

1. Alice Riva was a Qantas employee who on the day in question had flown from Brisbane to Sydney. At the relevant time she was speaking to a former colleague at the sales desk. She saw one man on the ground with about four or five men holding Tensa poles and hitting him continuously. They were raising their arms and bringing the pole down onto the man on the ground. All of them had poles. She was unable to describe them as they were too far away. She said they were big guys and thought that one was wearing a tracksuit. She walked outside to speak to the triple-0 operator and saw three men, the first who she described as tall, dark hair, blue eyes. The one next to him was a little shorter with dark hair. She thought they were Caucasian. She could not describe the third man. In cross-examination she acknowledged that she had told police that the men hitting the man on the ground all had dark hair. Her statement also said that all the men were wearing long pants.

1. Mr Huggard was in the departure hall to catch a flight and at the relevant time had just proceeded through the scanning area. Mr Huggard's vision was toward the front of the airport. He saw a man running and described him as a "surfy" type person, suntanned or darker, aged in his mid 30s and of Anglo Saxon descent. He saw a man with his arms outstretched bringing his arms to chin height and then bringing them down in front of him. He described the action as if "you were putting a spike into the ground with a spike impaler, just hard vigorous motion". He said that he saw this motion twice and part of the third motion at which time his vision was obscured. He described the man as large, very bulky, very dark, somewhere around six feet tall and wearing very dark clothing. He appeared to be wearing a t-shirt. He described the man's face as a "dark dirty face" and his hair was "tight". In cross-examination Mr Huggard stated that the man appeared to have a fat stomach and seemed to have facial hair.

1. Mr Huggard explained that to the left of the man was a smaller person who was doing a similar action but on a different angle. He described the man as of smaller stature, once again in dark clothing and with tight hair. The action of this person was much quicker than the action of the other man. Mr Huggard stated the latter man made 3 or more strikes at what appeared to be a 45 degree angle. In cross-examination Mr Huggard stated that the second man appeared to be five feet seven inches tall, but that he was stooped. He accepted in cross-examination that he had been unable to identify anyone in photographs shown to him by police, that he had had a split second view, and that he was about 50 metres away.

1. Roger Whyte was with his wife walking from Terminal 2 to 3. At the relevant time they were directly adjacent to where passengers were queuing for the economy check-in counters. Mr Whyte observed 10 or 12 persons involved in a fight. His attention was drawn to two persons, one was five feet nine or ten inches, of Middle Eastern appearance, of stocky build, with tattoos on his arms and wearing a green singlet. He was fighting with a man who was an inch or two taller wearing a red t-shirt and black shorts. The second man was also stocky, of Middle Eastern appearance and had black curly hair.

1. Mr Whyte also saw a smaller man, around 5 feet 9 or 10 inches, with dark hair, of slight build, perhaps 70 kg, wearing a dark shirt and perhaps dark trousers and probably not much more than 30 years of age. He was being attacked by at least two people and perhaps up to four. He had a clear recollection of one of the assailants hitting the man with a silver bollard using a "stamping" action "straight downwards". He could not say how many times he did so but it would have been at least five times. He was unable to describe either man. He stated that he saw the two assailants run out of the door with two other men. They ran down the ramp and a short time later they ran back up the ramp. Mr Whyte accepted that he participated in seven different identification procedures but that he did not select any photographs.

1. Ms Whyte was travelling with her husband and they were making their way from Terminal 2 to 3. She described several groups fighting. She stated that there were four people fighting in a group; one of them broke free and ran off through the exit leaving two people bashing one person. She described the man who ran off as short and nuggetty with a sleeveless shirt. The man who was being bashed was slight in build, had tattoos on his right calf and was wearing a t-shirt, shorts, socks and joggers. He was the size of a jockey or a bit taller and of light build, perhaps 60 kg. They were fighting near an elderly couple who were about ten metres away.

1. Ms Whyte stated that at first the slight man tripped over. The two other men were punching him and the bigger man picked up a bollard and started hitting him with it. She described this man as clean cut, with dark hair, six feet tall, wearing a long-sleeved shirt and trousers and slightly overweight with a pot belly. The shirt was pale, maybe pale blue. She described the second man as wearing a t-shirt, with dark hair with blond streaks, slim and tallish and about five feet seven inches. The bigger man hit the other man with the bollard approximately five times; twice when standing, once when falling and twice on the ground. She accepted in cross-examination that she had described the first man at the committal hearing as overweight or obese. She also stated in cross-examination that the man's shirt had a collar and buttons. She also clarified in cross-examination that the man with the bollard did not use a putting action. He brought the bollard down like an axe.

1. Ms Whyte was shown seven collections of photographs. In the first collection Ms Whyte identified one photograph as similar to the person kicking the deceased. The collection contained a photograph of Mr Menzies but the photograph selected was of a person other than Mr Menzies. Ms Whyte also viewed a collection that contained a photograph of Mr Aouli but selected a photograph of a person other than Mr Aouli. She did not select any photographs from the third and fourth collections that contained photographs of Messrs Eken and Pirini. She then viewed a collection and selected a picture as the person who "Bashed a man to death with an instrument". The picture was of the appellant. She also identified another person in the collection who she described as similar to the person hitting the man with the bollard. However, she was reasonably confident that between the two photos, it was the one of the appellant that was more familiar. She was then shown a collection that included a photograph of Mr Kisacanin and then a collection that included a photograph of Mr Potrus, but she did not identify any photograph in either collection.

1. In cross-examination Ms Whyte accepted that when she spoke to police she described the man with the bollard as "slightly overweight with a pot belly". She also told police that he was wearing a shirt, not a t-shirt, and that the shirt was possibly blue or pale blue in colour. She accepted that at the committal hearing she described the man as "obese".

1. Mr Ireland had been dropped with his wife Marie at Terminal 3. Mr Ireland required wheelchair assistance. Mr Ireland sat on a seat while a Qantas employee helped Mrs Ireland check baggage and obtain boarding passes. Mrs Ireland returned to sit with her husband while they waited for a wheelchair. The seat was just inside the glass walls of the departure hall.

1. Mr Ireland saw a man run along the front of the check-in counters and then disappear behind the booths. He said it appeared there were a number of people brawling. He then saw a man lying in front of him on the ground. A man was standing near his head, neither hindering nor helping. Mr Ireland was continually looking back to make sure that his wife was all right. When he looked back both men were gone.

1. Mr Ireland then saw a man running. When he looked back, after checking on his wife again, the man was lying on the ground in front of him. The man's feet were closest to Mr Ireland and they were about six feet away. The man was wearing darkish clothing and a cap. He then saw a man wearing a darkish singlet run over and look at the man on the ground. After turning back from his wife, he saw a man in white trousers and a white shirt; the man was facing away from Mr Ireland. The man appeared to be fairly tall and well built. The man appeared to have picked up a metal stand and appeared to be "swinging it across his body from right to left in a slow motion". Mr Ireland described it as a putting motion and said that he did not know whether it hit the man on the ground. He said that the man in white appeared to swing the metal stand two or three times.

1. In cross-examination Mr Ireland stated that he did not see any fighting going on around the first man on the ground or any people throwing metal bollards. He said that the man in the dark hood would have been lying on the ground for maybe a minute or two with nothing happening to him. He reasserted that the man in white swung the post with a putting action. He stated that he did not see the man on the ground being chased by a number of people. He did not see anyone kicking him.

1. Mrs Ireland was at the departure hall with her husband. They took their bags and sat just inside the door. A little later she noticed a man running behind the counters but she did not see where he went. She then saw a few people pushing one another and moving across towards where she and her husband were sitting. Then a big man came in front of them. She only saw him from the back. He was dressed all in white. He would have been a few feet away. She thought he was moving one arm but was not certain. She could not see his hands. After the man moved away there was a younger man lying on the floor. In cross-examination she stated that she was not certain about whether men were hitting one another with metal posts. She did not see anyone kicking the man on the ground. She said the man in white was leaning over the man but she could not see what he was doing.

1. Patricia Watterson was the Sydney Domestic Airport duty manager at the relevant time. During the changeover with the previous duty manager there was a call on the radio regarding a fight at Gate 3. Ms Watterson heard a commotion in the check-in area. She ran in that direction and noticed bollards on the floor and a man on the ground. After arranging security screens she spoke to an elderly couple. She asked if they saw anything and the gentleman said to her that he remembered one person dressed all in white who had arms as big as legs.

1. Jacquelin Magnay travelled on QF430. On the flight she said she saw a man who she described as six feet four or five inches tall, very large, muscular build, of Middle Eastern appearance, wearing a white t-shirt, white tracksuit pants and white shoes, come down the aisle with a second man who wore light grey or brown tracksuit pants and a darker top. She said the second man commented on the pink top that she was wearing.

1. At Sydney Domestic Airport Ms Magnay again observed the man wearing a white top and white tracksuit pants; she noted that he had a large tattoo on the back of his neck that appeared something like an "infinite symbol". In the departure hall she saw five bollards being swung in the air at once. She was about 25 or 30 metres from the fighting. She saw a smaller man start to fall and one of the men with a bollard strike him on the head. Ms Magnay said the man used both hands, extended them way beyond the back of his head and used the full force to bring the bollard down. She saw this happen once. As this was happening another man was kicking the man on the ground in the groin and leg area. Another large man, wearing a ripped green shirt, jumped on the back of the man with the bollard. The man who later held the hand of the man on the ground was the same person who was on the back of the man holding the bollard. In cross-examination Ms Magnay stated that she did not see the man with the bollard using a putting motion.

1. Matt Zhu travelled on QF430. He viewed the departure hall incident from a few metres from the top of the escalators. He saw two people beating one person. One lifted a steel pole to hit the man on the ground but he could not see if he actually hit the man as his view was obscured. He saw the man lift the pole and bring it down diagonally across his body from right to left more than two times. He described the man as having no or very short hair and he stated he possibly wore a t-shirt. He could not say what colour it was.

1. Tony Wang travelled on QF430 with colleagues Deborah Deng, Matt Zhu and Huai Xi Luo. The fight in the departure hall happened about 20 to 25 metres from where they were standing. Deborah Deng filmed the incident. Mr Wang saw a person lift a pillar to hit somebody. The person's hands were lifted above their head and brought down in front of them; he saw that happen only once. He could not describe the persons involved because of the distance.

1. Deborah Deng stated that at the top of the stairs she took out her digital camera to try to take some footage. The footage taken by Ms Deng was admitted as an exhibit in the proceedings. She otherwise did not give any evidence in relation to the incident involving the bollard.

(2) The evidence of the informers AL and SP

1. In addition, evidence was also given by the two informers, AL and SP.

1. AL at the time was a nominee member of the CMC. On the day in question AL had returned home from church when he received a phone call that he had to go to the Sydney Domestic Airport. In relation to the events in the departure hall AL stated that he saw Mr Menzies, who he referred to as "Touza", with his hands around the top of a "silver thing", like a rubbish bin. He said that he saw Mr Menzies hit the man on the floor twice. He said that Mr Menzies was facing away from him when he was hitting the man on the floor. The man on the floor was lying on his right side, facing Mr Menzies. AL stated that after he saw the first and second hit he walked out. He stated that he ran out of Terminal 3 with the appellant, Mr Menzies and Frank (presumably La Rosa) and got in a taxi. He stated that in the taxi Mr Menzies said "I think I killed him".

1. The cross-examination extensively addressed AL's mental health issues, an occasion when he was hit on the head with an iron bar, an occasion when he was scheduled under the Mental Health Act 1990 (NSW), his history of drug use, and his criminal record and history of violence.

1. In cross-examination AL stated that following the appellant being stabbed he was standing by himself and was not kicking or hitting anyone. In cross-examination AL stated he was between two check-in counters when he saw Touza hitting the man on the ground. He stated that he picked up a bollard and threw it but it did not hit anyone. AL accepted in cross-examination that he had told police that Touza had been hitting the man on the ground with a rubbish bin. AL drew a diagram for police of the object that included a hole in which to put rubbish; it was about 30 cm wide. He was unable to describe what Touza was wearing at the time beyond that it was a short-sleeved shirt that maybe was black. AL conceded in cross-examination that in his first interview with police he did not refer to the admission made by Mr Menzies in the taxi.

1. SP at the time was a nominee member of the CMC. In relation to the events in the departure hall, SP described seeing Mr Menzies and the appellant with a bollard near the deceased and also Mr Abounader punching the deceased. He said otherwise he did not see anyone else assault the deceased at the Sydney Domestic Airport.

1. SP stated that he could see Mr Menzies and the appellant on the other side of a Qantas banner assaulting the deceased. SP saw that the deceased had fallen to the ground and bollards were being picked up. He saw Mr Menzies with a bollard in his hand bringing the bollard straight down once. He could not see clearly whether it connected with any part of the deceased's body. Mr Menzies was standing up around the head area of the deceased. He described the appellant as being about one metre away and to the left of Mr Menzies.

1. I do not think it follows from the content of MFI 119 that the jury disregarded his Honour's directions. Again, until a verdict was taken, any indication of agreement that (at least) the lesser charge was proved did not reflect compromise. The several alternative verdicts did not fall into mutually exclusive classifications so far as proof of the elements was concerned.

1. I am of the view that the appeal against conviction should be dismissed.

Reasons for rejecting grounds 1 and 2

1. Ground 1 invokes the power of this Court under s 6(1) of the Criminal Appeal Act 1912 to set aside the verdict of a jury if the Court is of the opinion that the verdict is unreasonable, or cannot be supported, having regard to the evidence. As noted by Bathurst CJ, the High Court has explained that, in considering an appeal on that ground, the task for this Court is to make "an independent assessment of the evidence, both as to its sufficiency and its quality". The purpose of undertaking that assessment is to determine the question whether the jury ought, upon the whole of the evidence, to have entertained a reasonable doubt as to the guilt of the accused. The High Court has said that is a question of fact which is not to be confused with the legal question whether a verdict of guilty was open on the evidence: M v R [1994] HCA 63; (1994) 181 CLR 487 see at 492-493. But nor is it to be confused with the question left to the jury at the trial, that is, whether to be satisfied beyond reasonable doubt of each of the elements of the offence.

1. Whilst the High Court has made it clear that this Court must undertake its own evaluation of the evidence, it does not follow that a conviction cannot stand unless the Crown satisfies this Court beyond reasonable doubt of the guilt of the accused. The High Court has made it equally clear that the formation of the opinion which enlivens the power under s 6(1) is not to be understood to supplant the process of trial by jury. The opinion this Court must reach before it can interfere with a verdict is in that sense prescriptive as much as factual. It is a historical assessment as to whether the jury must or ought to have entertained a reasonable doubt. It is for the appellant to persuade this Court, by reference to some insufficiency or aspect of poor quality in the evidence, that the verdict of guilty was reached notwithstanding the demonstrated existence of a reasonable doubt which the jury ought to have held.

1. In M, the High Court remarked that, in most cases, a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. Plainly, the reference to "a doubt experienced by an appellate court" is to be understood to relate to a doubt experienced by the appellate court after considering the whole of the record of the trial, for it is only by reference to the whole of the record that the prescriptive conclusion (as to the state of mind the jury ought to have had) can be reached. That is reflected in the important qualification with which that observation in M was made, which acknowledges the need for the appellate court to consider whether its own doubt is one capable of being resolved by the jury's advantage in seeing and hearing the evidence.

1. The demonstration of a doubt which ought to have been experienced by the jury will not necessarily be achieved by demonstrating doubt on paper. What is required is a disciplined analysis of the forensic course of the trial pointing persuasively to some real inconsistency or weakness in the Crown case which this Court can conclude, on the strength of its own assessment of the evidence, the jury with all its advantage must have overlooked or ignored such that the verdict reached was "unreasonable" or is unsupportable.

1. The advantage enjoyed by the jury is not confined to the benefit each individual juror has of seeing and hearing the witnesses. The strength of 12 jurors as a tribunal of fact derives also from their diversity and their opportunity to deliberate as a group in private throughout the trial, evaluating the evidence as it is given, with all of its visual cues. The appearance on paper of weakness in the evidence does not of itself establish the unreasonable discharge of that function.

1. The jury was directed that the Crown case against the appellant was put in three ways. The first was referred to by the learned trial judge as the direct responsibility basis. Price J has summarised the evidence on the strength of which the Crown contends that it was open to the jury to find the appellant guilty of murder on that basis. I would respectfully adopt his Honour's analysis of that evidence.

1. As Price J has noted, an aspect of the appellant's argument was that, having regard to the jury's acquittal of Menzies, it is clear that the evidence of SP and AL was not accepted. That is a point commonly sought to be made in this Court in support of a ground of appeal that the verdict was unreasonable or cannot be supported on the evidence. It is an argument which entails a level of misconception or false logic. It does not follow from an acquittal that the jury must have rejected all of the evidence of a witness called in the Crown case in support of the relevant charge. Still less does it follow that any conviction based on the evidence of the same witness must be set aside as unreasonable.

1. As Price J's consideration of the evidence reveals, there was direct evidence that the appellant struck the deceased with a bollard. This was not a circumstantial case resting on inferences equally able to be assessed by this Court as by the jury. The case rested very much on the assessment of the direct evidence of eye witnesses. Contrary to the conclusion reached by Price J, I consider that the Deng footage did provide some support for the Crown case against the appellant. Based on my review of the record of the trial, my assessment of that evidence has not excited any doubt in my mind that cannot be resolved by the jury's advantage in seeing and hearing the evidence.

1. In reaching this conclusion, I have been concerned by the fact that, in sentencing the appellant, the trial judge was not satisfied beyond reasonable doubt that the appellant was the person who inflicted the blow or blows which caused the fractured skull or that the appellant inflicted any blows at all: R v Hawi [2012] NSWSC 332 at [56]. Those findings do not bind this Court but they do warrant respectful consideration.

1. The trial proceeded over a period of four months. The jury returned its verdicts after deliberating for over a month (retiring on 29 September 2011 and returning verdicts on 2 November 2011). The trial judge's findings were made at a later time for a different purpose.

1. The information and evidence before the trial judge did not coincide exactly with that before the jury. The trial judge had the advantage of seeing and hearing the evidence but did not of course participate in any of the jury's deliberations. In that respect his Honour's involvement was less. In other respects it was more. Although the jury could not reach a verdict on manslaughter against Menzies, he pleaded guilty to that offence within a month after the trial. By the time of sentencing the appellant, the judge had sentenced Menzies on the agreed basis that he was not directly involved in the assault but was complicit in the killing by virtue of being a participant in a joint criminal enterprise to commit an unlawful and dangerous act: R v Menzies [2012] NSWSC 158 at [40]. The outcomes in respect of others involved in the incident are set out in his Honour's remarks on sentence for Menzies at [39]. Although the appellant was the only person to be convicted at the trial in respect of the death of Anthony Zervas, four other Comancheros had previously pleaded guilty to manslaughter and had been sentenced by his Honour (Pirini, La Rosa, Aouli and Costa).

1. In all the circumstances, although it has troubled me to some degree, the fact that the trial judge was not satisfied of the appellant's guilt on the direct responsibility basis at the time he passed sentence has not swayed me from my own conclusion as to the reasonableness of the jury's verdict.

1. If it was open to the jury to be satisfied that the appellant was guilty on the direct responsibility basis, ground 2 falls away. I would reject grounds 1 and 2 on that basis. However, in case my conclusion as to guilt on the direct responsibility basis entails error, it is appropriate also to determine the issues raised in the appeal as to guilt on the basis of joint criminal enterprise or extended joint criminal enterprise.

1. In his remarks on sentence for the appellant, the trial judge said (at [57]):

I am satisfied beyond reasonable doubt that what occurred was this. One of the Comancheros rammed a bollard into the head of the deceased one or more times by raising and lowering it and striking him with the base of it. This caused the fractured skull. The offender contributed to the actions of this man by either joining in the assault by attempting, at least, to strike the deceased, or by simply being there when it was occurring. His presence would undoubtedly have had the effect of authorising and approving the actions of the other man who bludgeoned Anthony Zervas to death. Having seen the deceased being dealt with in that fashion, he turned and walked towards the exit, exchanged some threats with Peter Zervas, and then hurriedly left.

1. Adopting the language used by the Crown in his submissions, it is convenient to refer to the Comanchero who "rammed a bollard into the head of the deceased" as the bollard man. For simplicity, I will refer to the basis on which the judge sentenced the appellant as joint criminal enterprise with the bollard man.

1. As noted by the Crown, although none of the Comancheros who stood trial was convicted on the basis that he was the bollard man, such a person obviously existed and, I might add, was obviously a Comanchero. He can be seen on the Deng footage. The critical issue is whether it was open to find the appellant liable on the basis found by the trial judge at sentence having regard to the case put at trial and in the absence of a guilty verdict for either murder or manslaughter against any other member of the six Comancheros indicted for murder.

1. One argument raised on behalf of the appellant can, I would respectfully suggest, be dismissed out of hand. It was suggested that the trial judge's remarks set out above reveal that his Honour sentenced the appellant on the basis of direct liability as an accessory to the crime committed by one or other of the Comancheros, rather than on the basis of either joint criminal enterprise or extended joint criminal enterprise (appeal transcript page 15). It may be that I have misunderstood the burden of the argument but, in case it was put in the way I have understood, I should deal with it.

1. I do not think the judge's remarks in the passage set out above are to be understood to mean that his Honour sentenced the appellant on the basis of direct liability as an accessory. His Honour gave careful and unexceptionable directions to the jury on joint criminal enterprise and extended joint criminal enterprise. Those directions have not been the subject of any challenge on appeal. The fifth element of murder on the joint criminal enterprise basis as to which his Honour directed the jury was that the accused whose case was being considered was present, participating in the execution of the agreement at least by being ready and willing to provide assistance if required. It was in that context that his Honour made an express finding as to the conduct of the appellant. His Honour found that the appellant was present and that he "contributed" to the actions of the bollard man. That amounts, in substance, to a finding that he participated in the execution of the agreement. The judge found that the appellant contributed either by "attempting, at least, to strike the deceased" or by simply being present.

1. The appellant's written submissions (at [1363]) focussed on his Honour's remark that the appellant's presence would have had the "effect" of authorising and approving the actions of the bollard man. It was noted, correctly, that the potential effect of the conduct says nothing about the appellant's state of mind. However, it does not follow that his Honour mistook the basis on which the appellant stood to be sentenced as one of direct, accessorial liability. His Honour's remarks at [38] to [41] make clear that his Honour was well aware of the three alternative bases on which the offender might have been found guilty. It is clear that his Honour understood that it was necessary to make a choice as between those three bases. The suggestion that his Honour nonetheless thought it was open to sentence the appellant on a basis never put during the four-month trial over which he presided is without substance, in my view.

1. It follows that his Honour considered joint criminal enterprise with the bollard man to be within the ambit of the case put at trial. That is not determinative but it is a powerful consideration informing the issue whether justice miscarried.

1. The appellant does not suggest the existence of any obstacle in law to the appellant being held guilty on the basis of joint criminal enterprise with the bollard man. Rather, the submission was founded in notions of fairness or reasonableness having regard to the way in which the case was put at trial.

1. The appellant submitted that the jury's verdicts regarding the six Comanchero accused must mean that the jury rejected the Crown case that each Comanchero accused was liable to be convicted of murder or manslaughter because of the doctrines of joint criminal enterprise or extended joint criminal enterprise. It was submitted that "to have found only the appellant guilty of murder the jury must have reasoned either that he was directly involved in the killing of the deceased or, if not directly involved, that he entered some other agreement to inflict grievous bodily harm upon the deceased" (my emphasis).

1. It may be accepted that the Crown put forward a particular case, which was that all six Comanchero accused were party to the agreement or understanding that they would inflict really serious physical injury on one or more of the Hells Angels. However, to say that the jury "rejected the Crown case" that each Comanchero was liable on that basis is potentially confusing. The jury was required to consider the case against each accused separately. Although the Crown put a case that all six joined in the criminal enterprise, the Crown did not have to prove against any one accused that each of the other five joined the enterprise. As to any individual accused, what had to be proved was that there was in existence a joint criminal enterprise or agreement which had as its object the infliction of grievous bodily harm upon one or more members of the Hells Angels group. Accordingly, the contention that the jury must have reasoned on the basis of "some other agreement" in my view poses a false dichotomy. The object of the enterprise was in each case the same. It was not altered by the number of men proved to have been a party to it.

1. The judge directed the jury that a joint criminal enterprise exists "where two or more persons have an understanding or an arrangement which amounts to an agreement between them that they will commit a crime" (SU 60). It was submitted on behalf of the appellant that his Honour used the phrase "two or more" because it is found in the textbooks but that the Crown case was that the agreement was reached between "the six". The appellant submitted that the Crown could not step back from a case based on agreement between six and that, as a matter of elementary justice, could not "so radically change the case" as to rely on agreement between just "two or more" (appeal transcript at page 9). I do not accept that any case based on fewer than six parties to the agreement fell outside the ambit of the issues fairly brought forward by the Crown case.

1. A rational explanation of the jury's reasoning process in respect of the appellant is that they were satisfied beyond reasonable doubt that there was in existence a joint criminal enterprise as alleged by the Crown and that the appellant was a party to it. The jury could rationally have reasoned that they were satisfied beyond reasonable doubt that the bollard man was also a party to the joint criminal enterprise but could not be satisfied beyond reasonable doubt who the bollard man was. The critical issue is the significance of the existence of doubt as to the identity of the bollard man and, specifically, whether such doubt speaks of miscarriage of justice in the case of the appellant.

1. The jury was specifically directed that they did not need to be satisfied which person actually inflicted the grievous bodily harm on the deceased so long as they were satisfied that "whoever it was, that person was a participant, or those persons were participants, in the joint criminal enterprise" (SU 64).

1. However, the appellant submitted that a verdict on that basis cannot be sustained because it is not reasonably open to conclude that the bollard man was one of the five other men alleged to have been party to the joint criminal enterprise. Senior counsel for the appellant submitted that the uncertainty in the evidence on that issue precludes the Crown from "closing the class" of persons with whom the appellant might have been on a joint enterprise to those five. That was said to be reflected in the jury's verdicts acquitting each of the other five of murder (Eken, Potrus, Kisacanin, Menzies and Abounader); acquitting Eken, Potrus and Kisacanin of manslaughter and their failure to agree as to manslaughter in the case of Menzies and Abounader. The difficulty with the verdict, it was suggested, is that the bollard man could have been one of the Comancheros who was not indicted as a member of the joint enterprise. It was submitted that a verdict on that basis could not be sustained because it was not the case put at trial.

1. Is closing the class a predicate to a sustainable verdict in a case such as this? It is theoretically possible that the bollard man was not one of the five other men accused of murder, just as it is theoretically possible that he (or she) was not a Comanchero at all, but one of the many members of the public present in the departure lounge that day. I am not persuaded that the verdict must be set aside on the basis of that theory. It is an unlikely theory which finds little support in the evidence. The undisputed description of the bollard man (that he was tall and was wearing a dark top) was consistent with Menzies. There was a good deal of other evidence that it was Menzies, but Mr Stratton of counsel ran a strong case and, in the result, the jury was not satisfied of Menzies' guilt beyond reasonable doubt. No more can be concluded from that fact than that each juror entertained a reasonable doubt as to one or other of the elements of the offence of murder. The fact that they could not reach a verdict on manslaughter does not inform this issue either way. The case was left on the basis that they could find some accused guilty of murder and some guilty of manslaughter (SU 128). The murder case against the appellant was probably the strongest, flanked as he was by a group of tall men in dark tops and having regard to his role as President of the Comancheros, the content of the threats he made in Gate 5, his distinctive white outfit and the eye-witness evidence of his direct involvement in the final assault on the deceased.

1. The Chief Justice has noted that the description of the bollard man is also consistent with that of a number of the other Comancheros (Eken, Potrus, Aouli and Pirini) including two who were not said to be participants in the joint criminal enterprise (Aouli and Pirini). As to the other two, Eken and Potrus, they have been acquitted of any involvement in the death of the deceased but again, no more can be concluded from that fact than that each juror entertained a reasonable doubt as to one or other of the elements of the offence as against each of them.

1. It is true that Aouli and Pirini were not said to be participants in the joint criminal enterprise. They had both pleaded guilty to manslaughter before the trial and had been sentenced on a basis inconsistent with that put against the six at trial (a different, less serious joint enterprise): see R v Pirini [2011] NSWSC 1395 at [30]; R v Aouli [2011] NSWSC 1393 at [35]. The acceptance of those pleas reflected the absence of any evidence that either directly assaulted the deceased. Two other Comancheros (Costa and La Rosa) had also pleaded guilty to manslaughter before the trial. That was the legal context in which the trial had to be run.

1. The trial was thus conducted on the basis that the Crown had narrowed to six the number of Comancheros against whom it was alleged that they were party to an agreement or understanding that they would inflict really serious physical injury on one or more of the Hells Angels. Does it follow that a verdict based on joint criminal enterprise with the bollard man, who clearly exists but cannot be identified, entails a miscarriage of justice? I am not persuaded that it does.

1. The appellant's argument holds that, in order to make good the case brought forward at trial, the Crown had not only to prove each element of the offence beyond reasonable doubt but also positively to exclude any reasonable possibility that those from whom pleas were accepted in fact had a more serious involvement than the Crown could establish on the evidence. I do not think the rejection of that proposition endorses any miscarriage of justice.

1. I should note that the appellant drew the Court's attention in that context to the decision of the High Court in Likiardopoulos v R [2012] HCA 37, primarily for the purpose of distinguishing it. I do not think that decision assists one way or the other in the disposal of the present appeal.

1. Separately, the appellant submitted that it was not open on the evidence to conclude that the appellant reached agreement with the perpetrators of the attack. The suggestion that the trial judge saw fit to sentence the appellant on the basis of direct liability as an accessory (considered above) was an aspect of that submission.

1. In my view, it was well open to the jury to be satisfied beyond reasonable doubt that the bollard man and the appellant (who on the evidence of Mr Ireland was also wielding a bollard) were embarked upon a joint criminal enterprise to inflict really serious bodily harm on the deceased (in reaching this conclusion, I am not overlooking the fact that the joint enterprise was not alleged to anticipate the use of bollards). As already explained, I think that is clearly the basis on which the trial judge sentenced the appellant.

1. The trial judge did not need to make any specific finding as to when or how the joint enterprise was agreed upon as between the appellant and the bollard man. But although the Crown relied on the events of Gate 5, it was plainly within the ambit of the Crown case that the criminal enterprise could have been hatched or joined at a later point. Potrus and Abounader (two of the six indicted for murder on that basis) did not join the ten who came from Gate 5 until they reached the departure hall.

1. I do not accept, as repeatedly submitted on behalf of the appellant, that the acquittal of Menzies and Abounader of murder and the jury's failure to agree on a verdict as to the alternative of manslaughter signals "a clear rejection" of the existence of the joint criminal enterprise alleged by the Crown. The jury had to consider the case against each accused individually. The existence of doubt as to one or other element of the case against Menzies or Abounader is not logically or legally inconsistent with the conviction of the appellant on the basis of joint criminal enterprise.

1. In my respectful opinion, contrary to the conclusion reached by the Chief Justice, there is ample evidence to sustain the conclusion beyond reasonable doubt that an understanding was reached spontaneously, within the 34 seconds between the deceased's attack on the appellant and the final assault on the deceased. Indeed, I consider that it was open to the jury to be satisfied that the understanding was reached only seconds before the fatal attack. It was a fight between two openly hostile gangs. If the jury accepted the evidence of Mr Ireland, analysed in the context of the other evidence they had heard, it was open to them to accept that the appellant and another Comanchero fell in side by side swinging bollards in the general direction of Anthony Zervas's head. Whether or not the jury were satisfied that the appellant made contact, it would not be difficult on that basis to be satisfied that the two Comancheros had quickly reached an understanding that they were in it together, for the common purpose of doing the man really serious harm.

1. It may be accepted that the Crown cannot point to any direct evidence that definitively excludes the possibility that the bollard man was one of the other Comancheros in the departure hall (as opposed to being one of the other five indicted for murder) but I am unable to discern any miscarriage of justice in that fact. In my view, the appellant's argument is based on a technical, hindsight analysis of the way in which the case evolved. It conflates the Crown case theory with the elements of the offence. As already noted, it was not an element of the offence charged against the accused that each of the other five accused was a party to his enterprise. It cannot be said that the appellant was deprived of a trial on the issues. The case on which the verdict can, in my view, be sustained is not explicitly or implicitly different from the case presented at trial. I do not think the outcome of the trial entailed any substantive or procedural unfairness. The verdict did not offend any legal principle and was within the ambit of the careful legal directions given by the trial judge which, as I have noted, are not the subject of any challenge.

1. The appellant noted that the trial judge directed the jury that they were only concerned with the six Comanchero accused. On that basis, it was submitted that a verdict based on joint criminal enterprise with the person who inflicted the fatal injuries would have been contrary to the legal assumption that juries follow judicial directions. But as the submission reveals, that is an assumption adopted for the purpose of appellate consideration. It is not a legal determinant of whether justice miscarried.

1. During argument on the appeal, the Crown conceded that he was "locked into the six", since that was the way in which the Crown ran the case (appeal transcript day 2, pages 21-22). I have given careful consideration to that concession. Upon reflection, I am not persuaded that it capitulates to the issue raised by ground 2. Ultimately, the question raised for this Court is whether the verdicts reveal a miscarriage of justice.

1. The Crown acknowledges that the case was run on the basis that a joint criminal enterprise was entered into by the six accused. The trial judge directed the jury accordingly, explaining that they were concerned with the six accused. What is put on appeal is that the Crown had to prove beyond reasonable doubt that the bollard man was one of the six. That he was one of the six was an assumed premise of the analysis of the evidence argued on behalf of the Crown. The jury was not satisfied of the case against Menzies, but it was ultimately a matter for the jury whether to be satisfied of the elements of the offence against the appellant in accordance with the directions of the trial judge. Those directions included the proposition conceded by the Crown on appeal (that they were concerned only with the six). I have not been persuaded that a verdict of guilty against the appellant standing next to the acquittal of Menzies and Abounader entailed any miscarriage of justice.

1. For those reasons, I would reject grounds 1 and 2.

Reasons for rejecting ground 3

1. Ground 3 contends that there was evidence that the appellant committed the act causing the death of the deceased "under provocation" as that term is defined in s 23(2) of the Crimes Act 1900. That section provides:

(2) For the purposes of subsection (1), an act or omission causing death is an act done or omitted under provocation where:

(a) the act or omission is the result of a loss of self-control on the part of the accused that was induced by any conduct of the deceased (including grossly insulting words or gestures) towards or affecting the accused, and

(b) that conduct of the deceased was such as could have induced an ordinary person in the position of the accused to have so far lost self-control as to have formed an intent to kill, or to inflict grievous bodily harm upon, the deceased, whether that conduct of the deceased occurred immediately before the act or omission causing death or at any previous time.

1. The suggestion that there was such evidence in the present case was first raised by the appellant on the fifty-eighth day of the trial (5 September 2011) and then almost in passing, in the context of submissions as to the appropriate directions concerning the elements of murder on the joint criminal enterprise basis. It is instructive to consider the whole of the relevant exchange between senior counsel for the appellant and the trial judge (T4239-4241):

DUNN: I rely upon what Mr Stratton has said and I would urge your Honour to make the amendment that's proposed to page 1 to the extended joint criminal enterprise murder, but with the greatest of respect, it has to be made clear that it may be possible that people find themselves in the situation where they were fighting in front of the check-in counters and were doing so either on the basis of self-defence or, indeed, provocation, and in doing so that wouldn't automatically, because they are fighting, make them part of the agreement that some others may have had, that they have to look at the evidence in relation to each individual and it would be an error to say that because somebody was involved in a fight that they were necessarily part of the agreement.

HIS HONOUR: That's a point I hope to make to the jury.

DUNN: Thank you, your Honour.

HIS HONOUR: Just going back, you mentioned the word "provocation"?

DUNN: I did.

HIS HONOUR: That concerns me.

DUNN: I would have thought it was a highly provocative act if somebody tried

to stab Mr Hawi in the head.

HIS HONOUR: What did he do in response to that provocation, kill the deceased?

DUNN: I'm not saying he did anything, but if the jury were to find that he did do something, they may find his mental state was affected by the fact that somebody had, 30 seconds earlier, tried to kill him.

HIS HONOUR: Even though he didn't say that in his evidence.

DUNN: Even though he didn't say it in his evidence. It's open and therefore I would urge your Honour to take that view.

HIS HONOUR: So I would have to give all of the formal directions on provocation to the jury upon the basis that they rejected Mr Hawi's evidence and accepted that he was involved in the fatal assault upon the deceased?

DUNN: That's what the Crown is asking them to do. If the Crown, as I apprehend the way the case has been put over the last two days, accepts that Mr Zervas may well have tried to stab Mr Hawi in the head, the Crown say "you don't accept what he said", the next thing is we know that, and indeed I will be able to demonstrate to the jury, that Mr Hawi was out the door in something like a little over 30 seconds after that and in that period of time was he able to reason calmly and rationally as a result of what had happened to him.

HIS HONOUR: Mr Dunn, I won't shy away from giving directions that I have to give to the jury, but I find the prospect of introducing provocation concepts into the directions frightening.

DUNN: If your Honour pleases.

HIS HONOUR: If I have to, I will.

DUNN: All I'm saying is the Crown accepts that there was an attack by Mr Zervas with the weapon to Mr Hawi, that he has not had a lot of time to reason calmly and rationally thereafter, and that the effluxion of time is such and the nature of the attack is such that a number of things flow from that and the Crown are saying, "Do not accept his evidence." What we are saying is how one can reason calmly and rationally in that situation is one thing and if you do not accept his evidence as excessive self-defence or that he was provoked in some way in a brief period of time are matters that have to be covered, in my submission.

HIS HONOUR: I am just surprised because there has been no mention of provocation until today in the trial.

DUNN: I've been listening intently now. I know it's only limited pages of transcript but Mr Hawi has been mentioned every day and it's clearly put, "You don't accept what he says", and maybe the jury don't, and that's not the end of it.

1. It is clear from that exchange that the trial judge was not labouring under the misapprehension that provocation is comprehended within self-defence as a matter of law. The debate proceeded on the common premise that the critical issue was whether provocation was raised on the evidence. The judge's surprise at the late raising of the issue is not determinative of that question but it is a powerful indication of his Honour's assessment of the evidence at that advanced stage of the trial. The Crown also expressed her surprise and responded to the point only by acknowledging (unexceptionably) that if provocation was raised on the evidence, the direction had to be given (T4244). The judge indicated that he would think it through.

1. As Price J has noted, the judge determined the issue on 20 September 2011 with the following short remarks (emphasis added):

You will notice I have taken out "provocation". I don't propose to lead (sic) provocation to the jury. I have come to the view that whatever might be relevant in terms of those types of defences, they are relevant to self-defence and there is no work left for provocation upon that material.

1. In my view, it is clear in the context outlined above that those remarks recorded his Honour's assessment of the evidence, not an understanding that the law of self-defence leaves no work for the law of provocation. To the extent that ground 3 rests on an alleged misapprehension of the law on the part of the trial judge, it must be rejected, in my view. The basis on which his Honour determined not to leave provocation to the jury was that he was not satisfied that it was a factual issue raised on the evidence before the jury. It is the correctness of that conclusion which must be impugned in order to make good this ground.

1. As stated in the authorities referred to by Price J, the trial judge had to consider the matter on the version of the events most favourable to the accused and by reference to a jury acting reasonably.

1. There was scant analysis of the evidence in the submissions made to the trial judge. The submission focussed on the conduct of the deceased in attempting to stab the appellant. The trial judge correctly directed counsel's attention to the separate issue of the character of the response to that conduct. Section 23 did not apply unless the attempt to stab could have induced an ordinary person in the position of the appellant to have so far lost self-control as to have formed an intent to kill or to inflict grievous bodily harm.

1. Senior counsel responded to the trial judge's question by referring to the short period of time between the deceased's conduct and the time when the appellant left the building, the simple proposition being that it was open to the jury to conclude (if they rejected the appellant's version of events) that, if provoked, the appellant did not have time to reason calmly and rationally before striking the deceased with a bollard with the necessary intent. No submissions were directed to the conduct of an ordinary person. No submissions were directed to the evidence as to what transpired between the conduct of the deceased behind the check-in counters and the point where he lay on the ground, apparently unconscious, about six feet in front of Mr Ireland.

1. It has repeatedly been observed that the failure of an accused person to give evidence of loss of self-control or to raise the issue of provocation during the trial is not fatal to the application of the defence. As the trial judge recognised, if there was material on which the jury, acting reasonably, could return a verdict of manslaughter on that basis, it had to be left. But the circumstances in which the issue of provocation is raised, or not raised, are undoubtedly capable of informing the assessment (both at first instance and by an appellate court) as to whether it is properly raised. In the present case, the generality with which the issue was raised was a reflection of its weakness upon close scrutiny.

1. The premise on which ground 3 falls to be considered is that, induced by the attack behind the check-in counters, the appellant so lost his power of self-control that he pursued the deceased to the other side of a large public area and, in the presence of many members of the public, struck him to the head with a bollard as the deceased lay prone on the ground. I am not persuaded that any jury acting reasonably could hold that the deceased's conduct could induce an ordinary person in the position of the appellant to lose self-control to that extent. The ordinary person test in s 23(2) Crimes Act does not enact a lower standard of self-control for the members of rival bikie gangs than for other citizens. I do not think the conduct which is to be attributed to the appellant for the purpose of this ground is capable of meeting the objective standard to which the protection of human life must yield in accordance with the section. Accordingly, I am not persuaded that the trial judge erred in declining to leave provocation to the jury.

1. Even if that conclusion is wrong, and the proper analysis is that there was evidence that the act causing death was an act done by the appellant under provocation as provided by s 23(2), I consider that, for the reasons set out above, no substantial miscarriage of justice has actually occurred. I would dismiss the appeal on that basis, in accordance with s 6(1) of the Criminal Appeal Act 1912.

1. For those reasons, in my view the order that should be made in the appeal against conviction is that the appeal be dismissed.

1. I have read paragraphs [350] to [380] of the Chief Justice's judgment as to the orders that should be made in the circumstances. Without withdrawing my judgment or resiling from my own view that the appeal should be dismissed, I agree with the approach outlined by the Chief Justice, for the reasons his Honour has stated.

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Decision last updated: 05 September 2014