R v Hawi (No 15)

[2011] NSWSC 1661

Supreme Court

New South Wales

Case Title:	R v Hawi & ors (No 15)
Medium Neutral Citation:	[2011] NSWSC 1661
Hearing Date(s):	3 August 2011
Decision Date:	04 August 2011
Jurisdiction:	Common Law - Criminal
Before:	R A Hulme J
Decision:	Evidence not admissible
Catchwords:	CRIMINAL LAW - evidence - circumstantial evidence to prove an accused was the user of a particular telephone - probative value outweighed by danger of unfair prejudice
Legislation Cited:
Cases Cited:
Texts Cited:
Category:	Procedural and other rulings
Parties:	Regina Mahmoud Hawi Christian Adam Menzies Farres Abounader Ishmail Eken Usama Potrus Zoran Kisacanin David Padovan
Representation
- Counsel:	Counsel: Ms N Adams with Ms H Roberts (Crown) Mr P Dunn QC with Mr S Grant (Hawi) Mr J Stratton SC (Menzies) Mr J Trevallion (Abounader) Mr P Young SC (Eken) Mr R Driels (Potrus) Mr J Gordon (Kisacanin) Mr A Conwell (Padovan)
- Solicitors:	Solicitors: Solicitor for Public Prosecutions (Crown) Sid Hawach & Co (Hawi) Hunter Flood Pty Limited (Menzies) Archbold Legal (Abounader) Purcell Felton Lawyers (Eken) Barakat Lawyers (Potrus) Elie Rahme & Associates (Kisacanin) Nyman Gibson Stewart (Padovan)
File number(s):	2009/50087
Publication Restriction:

JUDGMENT

1. HIS HONOUR: The Crown proposes to adduce evidence in a summary form of telephone contact between various members and associates of the Comancheros and Hells Angels on 22 March 2009.

2. There has been evidence in the trial that when it was realised that Derek Wainohu, the president of the Hells Angels, was on the same flight from Melbourne as members of the Comancheros, that is Messrs Hawi, Menzies, Eken, Aouli and Pirini, there was contact made by telephone by Mr Aouli and Mr Eken and also by Mr Wainohu with fellow club members in Sydney. It was this contact that brought about the attendance of more Hells Angels and Comanchero members and associates at the airport.

3. No objection is taken by any accused to the admissibility of the schedule of telephone contacts, apart from Mr Conwell on behalf of the accused David Padovan. In essence, Mr Padovan does not concede that the telephone number the Crown attributes to him was his.

4. The Crown relies upon circumstantial evidence that it says supports the proposition that the number was in fact of a phone used by Mr Padovan. If the summary is to be tendered with the inclusion of the assertion as to Mr Padovan's phone number, it would also be necessary for the Crown to adduce evidence which provides the basis for the assertion. That evidence is the following.

5. First, the Crown relies upon the fact that the phone number was registered in a false name. Next, it relies upon a Hells Angels "contact list" that was current as at March 2009 and which had been seized by police in April 2009. That list includes first names or nicknames of Hells Angels members/associates with mobile phone numbers against them. The Crown relies upon an entry "Dave" and the number next to it.

6. The Crown also relies upon information received from the Probation and Parole Service in April 2009 as to what Mr Padovan's mobile phone number was, although as I understand it, the Crown does not propose leading evidence as to the source of that information. Then there are call charge records for the period 20 to 22 March 2009 which show the use of the phone associated with the number in an area where Mr Padovan lived.

7. Finally, the Crown relies upon two relatively long phone calls made on the night of 21-22 March 2009 to Elias Khoury, a fellow Hells Angels member, but also the cousin of Mr Padovan. The Crown contends that calls made in the middle of the night of a relatively lengthy nature would more likely be between people who knew each other well. The fact that Mr Padovan was the cousin of Mr Khoury fits such a description.

8. Mr Conwell's primary submission is that the evidence is not relevant. Alternatively, he submits that even if the evidence is relevant, its probative value is minimal and outweighed by its prejudicial effect. In relation to the latter submission, Mr Conwell referred to the false name in which the phone was registered. He also referred to the prospect of the jury speculating about the content of the communications which the Crown asserts involved Mr Padovan.

9. What is relevant is that Mr Wainohu became aware of the presence of Comanchero members on the plane. He made contact with Hells Angels members in Sydney and such contacts brought about the attendance of Hells Angels members/associates at the airport. This can be established without reference being made to any telephone communication involving Mr Padovan.

10. It was submitted that the Crown needs the evidence to confirm what witnesses on the plane had said about Mr Wainohu appearing to be sending text messages. That can be achieved by the evidence of communications sent from Mr Wainohu's phone. It does not need evidence of communications involving Mr Padovan.

11. The submission was made that the Crown needs to have the complete records before the jury so that it might invite the jury to draw the inference that the effect of the messages sent by Mr Wainohu was, "Can people please come to the airport to back me up?". The Crown is concerned also to make a submission to the jury that Mr Wainohu was carrying out a similar exercise to what the Comancheros were doing, that is, seeking support from fellow members. Again, such submissions can be just as effectively made without the evidence of communications involving Mr Padovan.

12. If the reference to Mr Padovan is excluded from the summary schedule of telephone communications, what would remain is that Mr Wainohu sent text messages to Peter Zervas and Tom Baker at 11.53am. Following that, there was contact between Peter Martin, Peter Zervas, Tom Baker, Elias Khoury, Musa Ovalle and a person who cannot be identified as there is inadequate evidence to establish the subscriber of the telephone number. This must be considered in the context of the undisputed evidence that Mr Wainohu arrived on the flight from Melbourne and around, or shortly before that time, Tom Baker, Peter Martin, Peter Zervas, Anthony Zervas, Elias Khoury, Musa Ovalle and David Padovan arrived at the airport.

13. In short, excluding the reference to Mr Padovan from the summary would leave the Crown with material that would still support the proposition that in respect of both Hells Angels and Comancheros, there was telephone contact made from the plane in Melbourne before the flight departed to fellow members in Sydney that was the catalyst for fellow members/associates, including David Padovan, attending the Qantas domestic terminal to meet the arriving flight.

14. I accept Mr Conwell's submission that evidence of a phone being registered in a false name and evidence that police had information from the Probation and Parole Service as to Mr Padovan's phone number is prejudicial. Excluding the source of the information in respect of the latter would carry with it a possibility of the jury speculating as to the source. The jury might assume that the police were interested in Mr Padovan in relation to the incident on 22 March 2009 but there would still be a prospect of speculation.

15. In my view, the evidence is of very low probative value. That value is outweighed by a danger of unfair prejudice. I exclude from the evidence the assertion that the telephone number was of a phone used by David Padovan.

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