R v Hawi (No 1)

[2011] NSWSC 1647

Supreme Court

New South Wales

Medium Neutral Citation:	R v Hawi & ors (No 1) [2011] NSWSC 1647
Hearing dates:	8 April 2011
Decision date:	21 April 2011
Jurisdiction:	Common Law - Criminal
Before:	R A Hulme J
Decision:	Evidence admitted in part
Catchwords:	CRIMINAL LAW - evidence - relevance - whether unfairly prejudicial - alleged murder by member of motorcycle club - evidence of rules and organizational structure of club
Legislation Cited:	Criminal Procedure Act 1986 Evidence Act 1995
Cases Cited:	R v Blick [2000] NSWCCA 61; (2000) 111 A Crim R 326 R v SJRC [2007] NSWCCA 142
Category:	Procedural and other rulings
Parties:	Regina Mahmoud Hawi Farres Abounader Tiago Costa Maher Aouli
Representation:	Ms N Adams with Ms H Roberts (Crown) Mr P Dunn QC (Hawi) Mr J Trevallion (Abounader) Mr M Pickin (Costa) Ms A Francis (Aouli) Solicitor for Public Prosecutions (Regina) Sid Hawach & Co (Hawi) Archbold Legal (Abounader) Kiki Kyriacou Lawyers (Costa & Aouli)
File Number(s):	2009/50087; 2009/52582 2009/64354 2009/13753; 2009/72013 2009/148558

Judgment

1. Counsel who appear for the accused Hawi, Abounader, Costa and Aouli have objected to the Crown adducing what has been given the shorthand description of "hierarchy" evidence. The evidence is briefly described in the Crown Case Statement at [10] - [11].

1. In pre-trial disclosure notices (s 143 Criminal Procedure Act 1986), senior counsel who each appear for the accused Menzies and Eken, have indicated an objection to another body of evidence. Nothing is said about the hierarchy evidence and so I assume they take no objection on behalf of their clients.

1. Counsel for the accused Padovan has specifically indicated that there is no objection to the evidence. That is, perhaps, understandable in that the evidence is concerned with the Comanchero motorcycle club and Mr Padovan was a member of the Hells Angels.

1. In what purports to be a pre-trial disclosure notice, which is dated 5 April 2011, it is said by some unnamed person on behalf of Mr Potrus that "the accused takes issue with all matters set out in the Crown Statement of facts" and that "the accused does intend to dispute the admissibility of proposed evidence on the basis of relevance and/or prejudice and/or use". I have not heard any explanation for this from Mr Potrus' representatives, but on the face of it, the notice is not a document which can be taken seriously.

1. Mr Driels, counsel for Mr Potrus, was present during a pre-trial hearing on 11 March 2011. On that occasion I invited counsel to identify any objections as to the admissibility of evidence that could be dealt with before the commencement of the trial. Mr Driels identified two matters but said nothing about the hierarchy evidence. He was present when I set the date for hearing submissions on this subject. Mr Driels did not then, and has not since, sought to join in the argument. I therefore assume that no objection is taken on behalf of Mr Potrus.

1. There has been no compliance by the accused Kisacanin with the order I made on 11 March 2011 that defence pre-trial disclosure notices be filed and served by 1 April 2011. I will assume, until I am told otherwise, that there is no objection on his behalf.

The evidence

1. The Crown has outlined the evidence which is the subject of the objection in greater detail in a document headed "Outline of anticipated evidence relied upon by the Crown" ("the written outline"). A folder of statements of various police officers who are the sources of the evidence was tendered and became Exhibit A on the voir dire. I was told that the Crown does not intend to adduce all of the evidence set out in those statements but only that which is summarised in the written outline. In addition, there were references by both the Crown Prosecutor and counsel for some of the objecting accused to evidence given at the committal hearing.

1. The written outline includes some mention of the Hells Angels. However, given that the Crown Case Statement does not indicate that the organisational structure and rules of that club are part of the Crown case, I will ignore it. The objection, in any event, is confined to evidence concerning the Comanchero.

1. Drawing from the written outline, the evidence that the Crown proposes to lead, and which is objected to, may be summarised as follows.

1. The Comanchero motorcycle club was an organisation with defined roles and a hierarchy of command. It had positions of National President, Vice President, Commander (the leader of a "chapter"), Sergeant at Arms, Secretary, Treasurer, Road Captain and Nominee Boss ("in charge of nominee members"). For brevity, I will refer to all of these as "leadership positions".

1. There is evidence as to the duties and responsibilities of these positions. The President was in charge. The Vice President supported the President, ensured his decisions were enacted and stood in for him during absences. The Sergeant at Arms was responsible for discipline and answered directly to the President. The Secretary kept minutes of club meetings. The Treasurer managed the club's finances. The Road Captain was in charge of organising club "runs", in terms of the route, the destination and general logistics.

1. As at the date of the incident at Sydney Airport, 22 March 2009, Mr Hawi was the National President of the Comanchero, Mr Daux Ngakuru was the Commander of the Sydney Chapter, Mr Abounader was the Road Captain, Mr Costa was the Secretary, Mr LaRosa was the Treasurer, Mr Rui Antao was the Nominee Boss, and Mr Herb Laupepa was the Sergeant at Arms.

1. Messrs Menzies, Potrus, Eken and Aouli were all members of the Sydney Chapter. Mr Kisacanin was a frequent visitor to their Milperra clubhouse and is, apparently for that reason, described as "a close associate".

1. Prior to becoming a "full member" of the Comanchero, a person is required to serve a period of time as a "nominee member". The prosecution witnesses identified as SP and AL were nominee members. Nominees were required to follow all directions given by full ("patched") members, including as to the performance of menial chores around the clubhouse, providing security at the clubhouse gate, or participating in criminal acts. I pause to indicate that I am surprised that the Crown is proposing to lead evidence of the latter. Although no specific objection was taken to it on behalf of any of the accused, I will not permit it unless I hear some compelling submission from the Crown to the contrary.

1. There were a number of club rules in the Comanchero. Disobedience could be met with punishment. The rules included obeying orders; not talking about club business outside the club; never talking to the police; turning off phones and/or removing batteries from phones when attending meetings; and ensuring that the leader (Mr Hawi) was always protected. All members were required to obey the directions of the President.

1. It is asserted in the written outline (at [3(f)]) that "an OMCG (Outlaw Motor Cycle Gang) has a strong culture of group loyalty". There is no footnote identifying the evidentiary source for the assertion, but the various statements of Sergeant Ian Frater that are part of Exhibit A seem to provide a basis for it.

1. Some of the club rules were reduced to writing. A document which contained a list of rules was seized by police from a Comanchero member on 25 October 2009. These rules are concerned generally with behaviour by club members. The first and seventh rule on the list appear to be most relevant:

1. Any display of cowardess (sic) will not be tolerated.

7. Members are to help any other members who are genuinely in trouble.

1. Beneath the list there is a statement, "Breach of any rules is punishable by disciplinary action or removal from the club".

1. The evidence that is the subject of objection may be seen as comprising:

(a) Evidence that the Comanchero motorcycle club had a hierarchical structure with members occupying certain leadership positions, others comprising the general membership, and proposed members (nominees) who were subservient to full members.

(b) Evidence that the leadership positions were occupied by certain persons, including Messrs Hawi, Abounader, Costa and LaRosa.

(c) Evidence that each of the leadership positions had certain roles.

(d) Evidence that the club had certain rules.

Crown submissions

1. At the time of writing, eight accused are to face trial on 9 May 2011 for offences which include murder. The Crown contends that each of them was a party to an agreement to inflict grievous bodily harm on one or more of the Hells Angels who were present at Sydney Airport on 22 March 2009. The Crown puts an alternative case for murder and it is that there was an agreement to assault one or more of the Hells Angels in some way and that each accused contemplated the possibility that grievous bodily harm would be intentionally inflicted as a possible incident of such a joint enterprise.

1. The Crown concedes in the written outline that there is no direct evidence of the precise terms of an agreement between the accused to assault the Hells Angels at the airport. It intends to invite the jury to infer that there was such an agreement upon three bases: the events which in fact occurred at the airport; the fact of there having been prior animosity between members of the two clubs; and the organisational structure of the Comanchero.

1. At the pre-trial hearing on 11 March 2011, I was informed that there was objection by the accused to the evidence which the Crown proposed to adduce in order to establish the prior animosity. The defence pre-trial disclosure notices confirm such objection. The parties are presently in negotiations as to whether an agreed fact can be formulated which will satisfy the Crown so as to assuage its desire to adduce evidence of prior criminal actions which were directed by members of one club against the other. For the purpose of dealing with the admissibility of the hierarchy evidence, it was common ground that I could assume that there will be evidence, if not an agreed fact, that there was animosity. The detail of such animosity is presently unimportant.

1. It was submitted by the Crown Prosecutor that the "organisational structure" of the Comanchero is relevant in proving the joint criminal enterprise. It is said to be evidence from which the jury could draw inferences about the state of knowledge of the accused, the question of any agreement between them as to what occurred at the airport, and the reason why they were at the airport. In other words, the fact that the accused were members of an organisation with a hierarchical structure and a known hostility towards the Hells Angels, has a bearing upon the inferences the jury might draw as to their presence at the airport when the fighting between the members of the two clubs took place.

1. It appears to be a fact that is not disputed that four of the accused (Messrs Hawi, Menzies, Eken and Aouli) and another Comanchero member who has pleaded guilty and been sentenced (Mr Pirini) arrived at the airport on a flight from Melbourne. It was purely a matter of chance that the president of the Hells Angels (Mr Derek Wainohu) was on the same flight. The Crown alleges that in response to the Comanchero members seeing Mr Wainohu on the plane, telephone calls were made from Melbourne by Mr Aouli and Mr Eken to Comanchero members in Sydney. It is the Crown case that the calls that were made by Mr Aouli were the result of a direction given by Mr Hawi. It is specifically mentioned in the Crown Case Statement that Mr Aouli called Mr Abounader and that Mr Eken called Mr Ngakuru. It was as a result of such contact that seven Comanchero members who were in Sydney proceeded to the airport. They were not all together at the time of the calls from Melbourne, but they immediately abandoned whatever they were doing, met up and went to the airport.

1. In the violence that occurred at the airport, in both the initial affray at Gate 5 and the subsequent riot in the departure hall, the Crown submits that "knowledge of the structure and operation of the Comanchero" will be "essential" to the task of drawing inferences about the state of mind of the accused, based upon both their individual actions and the actions of the group.

1. The written outline concludes with reiteration of the submission that the evidence as to hierarchy and the evidence as to previous animosity are relevant to the task of the jury drawing inferences as to the existence and scope of the joint criminal enterprise.

Defence submissions

1. The objection taken on behalf of the accused to the hierarchy evidence is based upon a contention that it is not relevant. Alternatively, it is contended that the probative value of the evidence is outweighed by the danger of unfair prejudice. It is submitted that for either reason, the evidence is not admissible.

1. Mr Trevallion, on behalf of the accused Abounader, indicated his understanding of the relevance of the evidence as being evidence from which a joint criminal enterprise can be inferred, and as showing that the accused would be more likely, than any other group of individuals, to follow the lead of their associates. He submitted that the evidence was incapable of supporting either of those propositions.

1. He submitted that the Crown was not suggesting that an order or direction was given as to how the Comanchero members were to conduct themselves at the airport. But even if that was the case, there was no rule of the Comanchero club that required "a blind following of orders or directions without consideration of the individual". Mr Trevallion pointed to a rule that a nominee shall carry out "whatever the club may deem to be a fair task" but noted that it had the proviso, "This is unless it has some detriment to his character and/or his self esteem".

1. As to the document containing the list of rules, Mr Trevallion submitted that its probative value was reduced by virtue of there being no evidence as to when those rules were in force, it being noted that the document was seized some seven months after the incident at the airport.

1. Reference was made to the evidence of SP and AL which was said to be to the effect that the attendance at the airport was for a defensive, rather than offensive, purpose, namely to "ensure that the other members were extricated safely".

1. It was submitted that a rule requiring that the president be protected at all times did not support an assertion that the Comanchero accused formed an intention to attack any of the Hells Angels.

1. Finally, as to the probative value of the evidence, Mr Trevallion submitted that the assertion that Comanchero members carried out orders without question is not reflected in the actions of individuals on the day. It was asserted that the evidence was that some members of the Comanchero party scattered, with some involved in fights, others watching, and others leaving the scene altogether. For example, it was said that AL just "ran away".

1. As to a danger of unfair prejudice, Mr Trevallion submitted that the jury would give to the evidence a weight that it did not deserve. The jury would be invited to assume that because there was a state of mind of a group, such a state of mind was held by all of the individual members of it. This was not borne out by the evidence. It was further submitted that the evidence would lead the jury to tendency reasoning against those accused who were present but not directly involved in the fighting. It was also submitted that the evidence raised issues of character. Finally, it was submitted that the best evidence as to whether there was a joint criminal enterprise was the actual acts of each individual accused, and that introduction of the hierarchy evidence would simply serve as a distraction from a consideration as to whether the individual accused participated either directly in the assault upon the deceased, or indirectly as parties to a joint criminal enterprise.

1. A discrete matter concerning only Mr Trevallion's client is the evidence that he was the road captain. It was submitted that this was an innocuous position but that the jury could regard it as having a military connotation and infer that the occupant had power and seniority over other members that was not the reality. Mr Trevallion was concerned that the Crown would invite the jury to infer that as the road captain, Mr Abounader organised Comanchero members to attend the airport, whereas such an inference can already be drawn that he was "at least partly responsible for notifying members of a potential incident at the airport". Thus, it was submitted, the evidence that the accused was the road captain added nothing to the Crown case and carried the unfair prejudice of a paramilitary connotation suggesting responsibility for the mobilisation of troops in an offensive action. Such an inference was said to be unsupported by other evidence available to the Crown.

1. Mr Dunn QC, on behalf of the accused Hawi, submitted that there was no issue that the Comanchero was a hierarchical organisation but such evidence had no probative value. There was no evidence of any order or direction having been given to any Comanchero member concerning the events which occurred at the airport. The attendance of the members who were in Sydney was simply a response to them having been told to "pick up the boys at the airport and bring them home". Further, the evidence of AL was that when they congregated at Brighton Le Sands on their way to the airport, they were told to "hurry up because there were Hells Angels on the same flight".

1. The Crown was criticised in Mr Dunn's submissions for having been selective about the rules of the Comanchero. It had not been mentioned by the Crown that SP's evidence included that there was a rule that members were not to engage in fighting in public.

1. As to the danger of unfair prejudice, Mr Dunn expressed a concern that the evidence, coupled with that relating to the animosity between the Comanchero and the Hells Angels, would simply serve to frighten the jury. This, he submitted, should be seen in the context of the Crown (in the persona of the Commissioner of Police) seeking an order that an extremely large number of civilian witnesses be identified by pseudonyms. In addition, there was the risk of the jury engaging in tendency or propensity reasoning.

1. When referring to the evidence of animosity, I take Mr Dunn to have been referring to a number of criminal acts allegedly perpetrated by Comanchero members towards the Hells Angels such as the firebombing of their clubhouse. As I indicated earlier, I am determining this issue upon the basis that there will be general evidence, or an agreed fact, that there was animosity, without evidence of the details about how the Comanchero gave effect to it.

1. I will only briefly outline the submissions of Ms Francis, for the accused Aouli, and Mr Pickin, for the accused Costa, but do not intend any disrespect to their arguments. It is simply because there was a considerable degree of duplication or overlap between the submissions for each accused. Those made by Ms Francis and Mr Pickin followed those made by Mr Dunn and Mr Trevallion.

1. Ms Francis submitted that the evidence was not relevant. There was a risk of the jury engaging in tendency reasoning. The evidence invited an inappropriate mode of reasoning. This was that the Comanchero were hostile to the Hells Angels; the accused was loyal to the Comanchero; therefore the accused was hostile to the Hells Angels; and as a result of this the accused gave effect to such hostility. Further, there was no evidence of a particular accused being aware of the club rules, and having complied with such rules at the airport.

1. Mr Pickin submitted that the prosecution evidence was that his client was present at the airport but did not actually do anything. One of the Comanchero called out to the effect that the deceased had a gun. At that point Mr Costa went to the ground. Shortly afterwards he left. He was one of the first, if not the first, to leave the terminal. Mr Pickin accepted that it was the Crown case that his client was present, ready and willing to assist if required. Further, there was evidence that Mr Costa was the secretary of the Comanchero, but there was little evidence as to exactly what that role entailed. It was submitted that there was a danger that the jury might draw inferences about Mr Costa's preparedness to commit a serious crime from the fact that he held that position, where such inference would be entirely speculative and not supported by the evidence.

Consideration

1. The objections as to the admissibility of the evidence raise two questions. First, whether the evidence, if accepted, could rationally affect, either directly or indirectly, the assessment of the probability of the existence of a fact in issue in the proceedings: s 55 Evidence Act 1995 . If the evidence could not rationally affect that assessment, it is not admissible: s 56(2). Secondly, there is the question of whether the probative value of the evidence is outweighed by the danger of unfair prejudice to the accused: s 137. If it is so outweighed, the evidence must be excluded: R v Blick [2000] NSWCCA 61; (2000) 111 A Crim R 326.

1. In my view, the evidence is relevant. The Crown case is that the Comanchero accused, including the four who have made the present objection, behaved at the airport as a group. A joint criminal enterprise was formulated at relatively short notice and each of the accused participated in one form or another in the execution of it. Individual accused are alleged to have participated in the enterprise by either being directly involved in the assault upon the deceased; or being involved in the general assault of Hells Angels; or being present, ready and willing to assist if required.

1. If the jury find that there was a joint criminal enterprise, it will also be necessary for them to determine its scope. The Crown alleges, first, that its object was to inflict grievous bodily harm upon one or more Hells Angels. Alternatively, the Crown contends that its object was to assault one or more Hells Angels with the contemplation by individual accused of the possibility that in the pursuit of this objective, grievous bodily harm would be intentionally inflicted upon one or more Hells Angels.

1. Evidence that may serve to explain the conduct of individual accused will be relevant to the jury's task of determining the existence and scope of the joint criminal enterprise alleged. This extends to not only the reason for the attendance of the seven Comanchero members at the airport but also to the reasons for the conduct of the twelve within the airport. In my view, the fact that these twelve men were members of an organisation with the attributes described earlier could be important evidence for the jury's determination of some of the critical issues in the trial.

1. For example, the fact that the seven members abandoned whatever they were doing upon being contacted by fellow club members in order to attend the airport may be seen as indicating that they were aware that they were attending for some purpose associated with club "business". It renders it less likely that their purpose was simply to "pick up" some fellow members. The fact that their response was so immediate may be regarded as indicating that they felt a sense of duty or obligation to do what was necessary to support fellow club members.

1. Further, the Crown case is that violence was initiated at Gate 5 by the Comanchero club president, Mr Hawi, punching or pushing Mr Wainohu, causing him to fall to the floor. It is alleged that all of the Comanchero members who were then present joined in. The fact that they were members of an organisation which had rules from which it may be inferred that a strong sense of loyalty to fellow members, and particularly the president, was required, may be regarded as making this allegation more likely to be true. The evidence is relevant in a similar way to the allegation that each of the individual accused joined in in various ways, upon an assault of Hells Angels members in the departure hall where the fatal attack upon the deceased took place.

1. The evidence that members of the Comanchero bore an animosity towards members of the Hells Angels is capable of adding force to propositions of this type, but they are not established by evidence of that animosity alone.

1. It was contended, mostly in quite general terms, that there was a danger of the jury applying tendency reasoning to the evidence. Ms Francis was the most explicit in her submissions on this subject. She contended that the Crown was seeking "to prove that a person had a particular state of mind on day X because on day X they were acting in furtherance of a contractual obligation that arises from this hierarchy ... they have done it before, they're doing it again". For that reason, she submitted, it was "tendency evidence".

1. The evidence is not "tendency evidence" as defined in the Dictionary in the Evidence Act . The concern here is whether they jury might apply tendency reasoning to evidence that cannot be used for that purpose. On the evidence that has been placed before me I cannot see much possibility of that. There is no suggestion that the accused "have done it before" and therefore had a tendency to act in the same way again. The process of reasoning that the Crown will ask the jury to apply to the evidence does not involve drawing an inference that there was conduct that conformed with the accused's previous character, reputation or conduct, or with a tendency that the accused had.

1. If, however, it emerges during the course of the trial that there is a real risk of inappropriate use of the evidence, then I will hear counsel as to such directions they consider I should give to safeguard against it.

1. Quite clearly, the jury will be required to assess the evidence concerning each accused individually. The type of reasoning that Ms Francis suggested, to the effect that a group state of mind can be automatically attributed to an individual accused, is obviously contrary to such requirement. However, I am not persuaded that appropriate directions could not provide an adequate safeguard in this respect.

1. As to the contention that attendance at the airport was for a "defensive" rather than "offensive" purpose, even if that were to be accepted, it does not preclude that the Comanchero members who went to the airport had the possibility of there being a violent confrontation in mind. It will be a matter for the jury to determine whether the seven men who attended the airport went there simply to "pick up" the arriving five and in order to see that they were "extricated safely". Some matters the jury will no doubt consider in this context include that the seven men arrived in just two cars, and that the arriving five had luggage. The jury will no doubt also consider such evidence as there is upon the question of which group initiated the violence. It would seem likely at this point that each side will blame the other. These are all entirely jury issues and have little, if any, bearing upon the admissibility of the evidence in question.

1. The Crown responded to the submission of Mr Trevallion that it was contrary to the Crown's assertion that members were required to comply with orders without question that some members "scattered", some participated in fighting, others watched, and others just left the scene altogether. It is the Crown case that all of the Comanchero were parties to the joint criminal enterprise. Most participated in the assaulting of Hells Angels members. Those who did not, were ready and willing to assist. There was no need for all to participate, the Crown submitted, as the Comancheros outnumbered the Hells Angels. In relation to AL, the Crown Prosecutor indicated that the evidence (and the basis upon which he had pleaded guilty) was that he was assaulted by a Hells Angels member; he then chased that person; and he then returned to the riot where he observed certain things. In short, it was incorrect to say that he just "ran away".

1. In relation to Mr Dunn's submission that the evidence would contribute to a "frightening" of the jury, it was not suggested that this evidence alone would have that effect. However, it was submitted that this would be the result of a combination of this evidence and that concerning the animosity between the rival clubs, as well as the reference to a large number of civilian witnesses by pseudonyms. I am presently unaware what, if any, evidence will be before the jury of animosity between the members of the two clubs and the question of witnesses being identified by pseudonyms is yet to be determined. Nevertheless, I am not persuaded that the evidence should be excluded on the basis suggested by Mr Dunn.

1. I cannot perceive any danger of unfair prejudice in the evidence that Mr Abounader was the road captain. The prosecution evidence, as indicated in the written outline, is that the road captain "is responsible for organising club runs (rides)". The Crown Prosecutor specifically disavowed an intention to lead evidence that the Comanchero was a paramilitary style organisation. The fact that Mr Abounader held the position of road captain is capable of indicating that he was more highly regarded and respected than the average Comanchero member. The Crown case is that Mr Aouli communicated from Melbourne with Mr Abounader and that this communication commenced the process of Comanchero members in Sydney gathering together to travel to the airport. Knowledge by the jury that Mr Abounader was not just any member, but was an office holder, adds some meaning to this evidence. In short, it has some probative value which I am not persuaded is outweighed by a danger of unfair prejudice.

1. Similarly, the evidence that Mr Costa was the secretary cannot give rise to any danger of unfair prejudice. The prosecution evidence is that this role required him to keep minutes of meetings. To be appointed as secretary might indicate that he commanded more respect than the average member, but there does not appear to be any more to it than that.

1. Some of the submissions for the accused to which I have referred, and some to which I have not, involve arguments as to whether or not the inferences for which the Crown contends would necessarily be drawn by the jury. The question for present purposes is, however, whether such inferences are reasonably open, not whether the jury will necessarily draw such inferences: R v SJRC [2007] NSWCCA 142 at [38] - [40] per James J.

Determination

1. I am satisfied that the evidence set out in the written outline document is relevant.

1. There is a danger of unfair prejudice in the Crown adducing evidence about nominee members being required to participate in criminal acts (see above at [14]) which outweighs its probative value and so I would not permit such evidence to be led.

1. I am concerned also about some of the rules that might be construed as indicating participation in unrelated criminal activity. In this regard I have in mind rules about not speaking to the police and removing batteries from phones when attending meetings. I will hear further submissions from counsel as to any of the specific rules to which objection is taken if this aspect is unable to be resolved by discussion between the parties.

1. Aside from those matters, however, I am not persuaded that a danger of unfair prejudice outweighs the probative value of the evidence. It is, therefore, admissible.

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Decision last updated: 08 February 2012