R v Hawi (No 17)

[2011] NSWSC 1663

Supreme Court

New South Wales

Medium Neutral Citation:	R v Hawi & ors (No 17) [2011] NSWSC 1663
Hearing dates:	12 August 2011
Decision date:	15 August 2011
Jurisdiction:	Common Law - Criminal
Before:	R A Hulme J
Decision:	Use of evidence as tendency evidence rejected
Catchwords:	CRIMINAL LAW - evidence - propensity, tendency and co-incidence - relevance - for particular purpose - to assert a tendency to act violently and possess and use weapons - evidence of prior convictions of a witness - evidence does not have significant probative value
Legislation Cited:	Evidence Act 1995 Weapons Prohibition Act 1998
Cases Cited:	R v AH (1997) 42 NSWLR 702 R v AW [2009] NSWCCA 1 R v Fletcher [2005] NSWCCA 338; (2005) 156 A Crim R 308 R v Fordham (1997) 98 A Crim R 359 R v Lock (1997) 91 A Crim R 356 R v Lockyer (1996) 89 A Crim R 457
Category:	Procedural and other rulings
Parties:	Regina Mahmoud Hawi Christian Adam Menzies Farres Abounader Ishmail Eken Usama Potrus Zoran Kisacanin David Padovan
Representation:	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: 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

Judgment

1. HIS HONOUR: Mr Stratton SC, on behalf of the accused Menzies, contends that the prosecution witness AL has a tendency "to act violently and to possess and use weapons". The evidence that is said to support this contention has already been adduced in the cross-examination of AL. The Crown contends that the evidence is relevant only to the credibility of AL and objects to the jury being directed that it is capable of establishing the tendency asserted.

1. One point may be immediately discarded. There is no suggestion that AL was in possession of a weapon on 22 March 2009. The only suggestion is that he picked up an item and used it as a weapon. So, use of a weapon is relevant whilst possession of a weapon is not.

1. The relevant provision of the Evidence Act 1995 that falls for consideration is s 97:

"97 The tendency rule

(1) Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person's character or otherwise) to act in a particular way, or to have a particular state of mind unless:

(a) the party seeking to adduce the evidence gave reasonable notice in writing to each other party of the party's intention to adduce the evidence, and

(b the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value.

(2) Subsection (1) (a) does not apply if:

(a) the evidence is adduced in accordance with any directions made by the court under section 100, or

(b) the evidence is adduced to explain or contradict tendency evidence adduced by another party."

1. The fact that the evidence has already been admitted, upon the Crown's concession that it is relevant to credibility, does not mean that the section has no work to do. It is concerned with whether evidence is "admissible to prove...". Section 95, in effect, prohibits the use of the evidence as tendency evidence unless the test in s 97 is met.

1. Notice of the intention to adduce the evidence was provided to the Crown and so there is no issue concerning s 97(1)(a). The issue for determination is whether the evidence has "significant probative value".

1. The relevant factual background is that the trial is concerned with two episodes of violent activity between members/associates of the Comanchero and Hells Angels motorcycle gangs that occurred at the Qantas domestic terminal at Sydney airport on 22 March 2009. The Crown contends that unlawful violence, constituting an affray, occurred in the vicinity of Gate 5 and that further unlawful violence, constituting a riot, occurred minutes later in the departure hall. The latter culminated in the death of the deceased.

1. AL was a nominee member of the Comanchero. He was charged with riot, affray and murder. When he agreed to assist authorities by giving evidence for the prosecution, the charge of murder was withdrawn and a reduced sentence was imposed after he pleaded guilty to the other charges. He was called by the Crown and gave evidence over a number of days (T2149 - 2510). He was extensively cross-examined concerning his reliability and his credibility.

1. AL's account, in very brief terms, was that he attended the airport with a number of other Comanchero members/associates in connection with the arrival of the president and other Comancheros on a flight from Melbourne. They met up at Gate 5 where there was a confrontation with some Hells Angels. Fighting broke out in the course of which AL admitted to throwing a single punch in response to having been hit himself (T2158). AL gave evidence of the involvement of others in the fighting, and he specifically nominated the accused Menzies as having thrown two punches (T2159).

1. When the fighting had ceased the Comanchero group walked out into the departure hall where further Hells Angels were waiting. Another fight broke out. AL said that he was hit by somebody from behind so he turned and pursued this person but did not catch up to him. In cross-examination he said that he threw a punch at this person (T2199). AL then returned to the area of the fighting where he claimed to have seen the accused Menzies striking the deceased on the floor with a metal object which he thought was a rubbish bin. The Crown case is that this amounts to evidence that the accused Menzies was directly involved in the fatal assault. Heavy metal bollards were being used as weapons by a number of participants in the fighting and the Crown case is that the extensively fractured skull that the deceased sustained was caused by one or more blows with such an implement. AL said that he then left the terminal. On his way out he picked up a bollard but only to throw it away. (T2160-2165)

1. In cross-examination it was put to AL, but he denied, that he had tried to play down his role in the two fights and that he had attempted to shift the blame for some things he had done onto others (T2198). He denied that he was more involved in the fighting at Gate 5 than he had admitted (T2232). He denied swinging a bollard at someone in the departure hall, or using a bollard as a weapon (T2199; T2235; T2250; T2384). He denied striking the deceased and denied that he was directly involved in killing him (T2217). He denied fighting in front of the check-in counters (T2235; T2250; T2384).

1. The notice given on behalf of the accused Menzies refers to the following evidence which is said to establish the asserted tendency:

• Evidence that the witness AL assaulted his wife TS on 14 December 2002; resulting in a conviction in Liverpool Court on 11 May 2005.
• Evidence that the witness AL was convicted of a demand money with menaces, with a count of robbery taken into account on a Form 1, at the District Court at Campbelltown on 10 November 2005.
• Evidence that the witness AL was convicted of possessing a shortened firearm at Penrith Local Court on 7 February 2000.
• Evidence that when the witness AL was arrested in relation to this matter, a knuckleduster was found at his home.
• Evidence that on 26 April 2002 the witness AL had a knife in a public place, Pateete Avenue Lethbridge Park.

1. The evidence actually adduced in the cross-examination of AL may be summarised as follows:

• He implicitly acknowledged that he had experienced a problem with violence in the past (T2217.28).
• He was convicted of robbery and demanding money with menaces in the District Court on 10 November 2005. This related to him having robbed a drug dealer who he acknowledged had handed over money out of fear (T2217 - 2218).
• He was convicted of assault on 1 May 2005. This related to him having assaulted his wife in December 2002. He had raised his hand and threatened to slap her. He had then slapped her in the face with the back of his left hand and then slapped her in the face with his right hand. His wife walked away but he went after her. He picked up a rock and told her to go away. A neighbour tried to intervene but he told this person, "I'm coming back for you, you motherfucker" . He was very angry at the time. He was not sure if he had said to his wife, "I'm going to kill you, you bitch" . He was upset, and would say anything when he was upset. (T2218 - 2220).
• On 4 April 2000 he was charged with possessing a shortened firearm. It was a cut-down shotgun that belonged to a friend who had brought it to his house in three pieces and asked him to mind it. It had been put under a dressing table. AL did not touch it (T2221 - 2223).
• Some knuckle-dusters were found in his house when he was arrested in September 2009 in respect of the incident at the airport (T2223). It is significant that he was not asked, and there is otherwise no evidence, as to whether they were his or whether he knew they were there. Knuckle-dusters are a prohibited weapon: Weapons Prohibition Act 1998, Schedule 1. It is an offence against s 7 of that Act to possess a prohibited weapon without a permit. This is a serious offence, given that there is a prescribed maximum penalty of imprisonment for 14 years. There is no evidence that AL was charged with such an offence.

1. The tendency notice also refers to AL being found in possession of a knife in a public place in April 2002. No evidence was adduced in respect of that.

1. It is necessary to identify the facts in issue, the probability of the existence of which is said to be affected by the evidence under consideration: R v Fletcher [2005] NSWCCA 338; (2005) 156 A Crim R 308, per Simpson J at [34].

1. It is Mr Stratton's contention that AL downplayed his role in respect of both incidents. He will submit to the jury that AL played a greater role in the fighting in both incidents than he was prepared to admit. In relation to the Gate 5 incident, he will submit that AL had attributed to Mr Menzies certain acts of violence that he committed himself. In relation to the departure hall incident, he will submit that there is evidence that supports a proposition that AL was wielding a bollard as a weapon and that there is evidence suggesting that he may well have been involved in the fatal assault upon the deceased. Further, it will be submitted that by virtue of the greater involvement that AL had in the violent conduct that occurred in the departure hall, he cannot have had the opportunity to observe the acts of others as he had claimed.

1. Mr Stratton relies upon various eyewitness descriptions of the events, and the participants, in support of these propositions. The Crown Prosecutor, on the other hand, submitted, in effect, that upon closer analysis the evidence really does not support such propositions at all.

1. Initially I had thought that consideration of these competing submissions would require a close analysis of the evidence. In the end, however, I have come to the view that this is unnecessary. The fact of the matter is that Mr Stratton asserts that there is an evidentiary basis for him to make the submissions to the jury that he foreshadowed. Whether such submissions have merit is unnecessary for me to determine. I am prepared to assume, for present purposes, that it would be open to the jury to accept that there is merit in what has been foreshadowed will be contended. Indeed, the fact that there is a dispute between the Crown and Mr Stratton as to the strength of the evidence upon which Mr Stratton relies for asserting that AL played a greater role than he was prepared to admit, probably serves to elevate the importance of the tendency evidence. If it is capable of lending weight to a proposition that is otherwise of debatable merit, then its probative value is probably greater. The point may be illustrated by the converse: if the proposition that AL played a greater role in the violence was overwhelmingly established by the eyewitness evidence, then there would be no point that would be served by establishing that AL had a tendency to act violently.

1. Does the evidence have "significant probative value"? The actual probative value of the evidence is a matter for the jury. The question I have to determine is whether it is capable of having that degree of probative value. This involves an assessment of the extent to which the evidence could rationally affect the probability of the existence of the facts that are in issue. As to these matters, see Fletcher , per Simpson J at [33].

1. The adjective "significant" has been held to mean "important" or "of consequence": R v Lockyer (1996) 89 A Crim R 457 at 459. The requirement is that the evidence is more than merely relevant, but it is not necessary that it have a "substantial" degree of relevance: Lockyer at 458. See also R v Lock (1997) 91 A Crim R 356 at 361; R v AH (1997) 42 NSWLR 702 at 709; R v Fordham (1997) 98 A Crim R 359 at [370].

1. Mr Stratton referred me to the more recent expression of the requirement by Latham J in R v AW [2009] NSWCCA 1:

[47] ... The evidence must have significant probative value, that is, it must be evidence that is meaningful in the context of the issues at trial. The provision is concerned with the qualitative aspects of the evidence, not quantitative ones. The extent to which such evidence is objectively proved, as in MM , has less to do with s 97(1) than it has to do with s 101(2). It must be more than merely relevant, but may be less than substantially so: R v Lockyer (1996) 89 A Crim R 457. The question for the trial judge was whether the evidence was important in establishing the facts in issue, namely whether the appellant committed the charged sexual offences against the complainant.

1. I have come to the view that the evidence is incapable of being regarded by the jury as being important, or of consequence, in determining the issues that Mr Stratton has raised on behalf of the accused Menzies that I have outlined earlier.

1. There was a single act of relatively minor physical violence, in a domestic context, over six years before the events in question. There was the intimidation of a drug dealer, without physical violence, some four or five years before the events in question. Those two incidents cannot establish that AL's character was such that he had a tendency to act violently. There was the possession, without use, of a weapon nine years before the events in question. There is no evidence that he had a tendency to use weapons.

1. So, in terms of the first of the alleged tendencies of AL, "to act violently", what is relied upon are two incidents, quite some years earlier. One involved actual violence and the other, threatened violence. The contexts in which they occurred were quite different to the situation which pertained at the Qantas domestic terminal on 22 March 2009. The circumstances of the earlier incidents were quite dissimilar to the latter, although I should not be taken to be suggesting that a high degree of similarity is required. In terms of the second of the alleged tendencies, "to possess and use weapons", I am unable to see how the jury could regard a single incident in which AL allowed a shortened firearm, broken down into pieces, to be stored at his home in 2000, as having any bearing at all on whether he picked up a bollard and used it as a weapon in 2009.

1. The foregoing analysis involves looking at the two tendencies separately. Looking at them in combination does not add anything to the probative force of the evidence. I am not persuaded that the capability of the evidence to have "significant probative value" has been established.

1. I note that the Crown concedes that the evidence is relevant to AL's credibility. It is not clear how some of it is. How could the fact that AL had assaulted his wife, on a single occasion, or possessed a shortened firearm, on a single occasion, both quite a number of years ago, have a bearing on whether he should be believed (which is the real issue) in respect of the evidence he has given? It might be contended that a person who has committed any type of criminal offence in the past is less trustworthy. That is a very broad generalisation. It might be relevant that a person with AL's record would expect to receive a greater sentence than a person who did not, and thus there was a greater incentive for him to "cut a deal" with the authorities. But he was not cross-examined to that effect; the cross-examination was confined to the bare fact that he had committed those offences.

1. With those reservations noted, it will nonetheless be necessary to direct the jury that the evidence of AL's previous offences are relevant only to his credibility and cannot be used as a basis for any tendency reasoning. I will hear counsel as to the terms of any such direction.

1. The case of the evidence as tendency evidence is rejected.

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Decision last updated: 13 February 2012