R v Hawi (No 23)

[2011] NSWSC 1669

Supreme Court

New South Wales

Medium Neutral Citation:	R v Hawi & ors (No 23) [2011] NSWSC 1669
Hearing dates:	23 August 2011
Decision date:	23 August 2011
Jurisdiction:	Common Law - Criminal
Before:	R A Hulme J
Decision:	Evidence of witness admissible as tendency evidence concerning the deceased; evidence of deceased's criminal history inadmissible
Catchwords:	CRIMINAL LAW - evidence - propensity, tendency and co-incidence - admissibility and relevance - for particular purpose - other cases - to assert a tendency to engage in and persist with violent conduct with the use of a weapon - evidence of a prior attack with a weapon - evidence has significant probative value - evidence of prior convictions has no significant probative value
Legislation Cited:	Evidence Act 1995
Cases Cited:	R v AH (1997) 42 NSWLR 702 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: Earlier in the trial it was indicated by the representatives of the accused Hawi that there was an intention to lead tendency evidence in respect of the deceased, Mr Anthony Zervas. A tendency notice dated 20 May 2011 has been served in relation to that proposal.

1. I first heard submissions on this issue on 15 August 2011 (T3658ff). Ultimately it was determined that it was not appropriate to conclude my consideration of the issue until Mr Hawi had given evidence in his own case.

1. Mr Hawi gave evidence over the course of 22 and 23 August 2011. Further submissions were then made by the parties on this question of tendency evidence. I indicated that I proposed to allow one part of the evidence, but not another part. To avoid inconvenience to the jury, the Court then resumed with the jury in order to hear the evidence that I was prepared to allow. Once that occurred, I then took the opportunity to provide reasons for my ruling. I now amplify my reasoning in this revised judgment.

1. I will first outline the nature of the evidence in question. It takes two forms. First, there is the evidence of Sergeant Matthew Fotopoulos set out in the statement made by him on 31 March 2009 concerning an event which occurred at his home on 20 March 2009. Secondly, there is the deceased's criminal history.

The evidence of Sergeant Fotopoulos

1. Sergeant Fotopoulos' evidence, to paraphrase and summarise, is that two days prior to the incident at the airport there was an unannounced calling by Anthony Zervas and a companion at the home unit complex at which Sergeant Fotopoulos lived. Mr Zervas was, apparently, trying to make contact with the occupant of another unit in the complex but without success. The behaviour of the two men was such that they were creating a nuisance. Sergeant Fotopoulos went to the front door of the complex and spoke to them. This resulted in Mr Zervas attacking him with a knife and cutting or stabbing him. There were two separate attacks a short period apart. Following the second attack, Sergeant Fotopoulos was able to repel Mr Zervas and endeavoured to close the front security door of the complex. Mr Zervas was undeterred and put his foot in the door. Ultimately Sergeant Fotopoulos succeeded in having Mr Zervas remove his foot from the door. Mr Zervas then proceeded to kick the lower glass door panel causing it to break. Shortly after that Mr Zervas and his companion left.

1. The incident in the departure hall on 22 March 2009 included a group of 12 Comancheros coming into contact with a group of 5 Hells Angels behind the check-in counters. As the two groups came together it is common ground that Anthony Zervas initiated an attack upon Mr Hawi by attempting to stab him with a pair of scissors. Mr Hawi blocked that attack and suffered, he says, a wound to his arm and some injury to his eye. It is from that point that the Crown and the defence cases take on a different complexion.

1. According to the Crown case, as opened to the jury, Anthony Zervas was immediately chased by Comancheros from the back of the check-in counters to the front of them as fighting erupted (T65.13). The Crown Prosecutor also referred to the Crown case being that the fighting group moved through the check-in counters to the front of the terminal where separate fights took place, one of which involved the deceased. Mr Zervas was on the ground and was there fatally assaulted (T66).

1. This is to be contrasted with the evidence given by Mr Hawi which was to the following effect (T3790ff). As the two groups neared each other behind the check-in counters, he heard someone in his group call out, "he's got a gun" . Mr Hawi said that he ran for his life. He turned and saw that he was being chased by Anthony Zervas who swung at him. Mr Hawi blocked that swing with his hand and suffered a cut. He said that the swing occurred as he was heading through the check-in counters towards the front of them. He also said that as he was going in that direction, he was fighting off both Anthony Zervas and Peter Zervas.

1. Mr Hawi said that when he got to the front of the check-in counters, Anthony Zervas dropped his weapon. Mr Hawi did not know where Anthony Zervas went. Mr Hawi then went on to say that later, and towards the front of the terminal, he was attacked again by Anthony Zervas with another weapon, with some assistance apparently from Elias Khoury, and in the course of this second attack by Anthony Zervas, he suffered a cut on his tricep and shoulder.

1. Those competing cases for the Crown and for Mr Hawi set the context for assessing whether the evidence of Sergeant Fotopoulos could have significant probative value. The facts in issue are whether Anthony Zervas was pursued through the check-in counters and assaulted and killed near the front of the terminal, as opposed to whether after his initial attack upon Mr Hawi, he continued his attack through the counters and then, after a short period during which they were apart, he returned and attacked Mr Hawi a second time with another sharp instrument.

1. According to written submissions by counsel for Mr Hawi, the evidence of Sergeant Fotopoulos was said to demonstrate a number of tendencies.

(a) Be armed in company

(b) Be armed in company in public areas

(c) Have a weapon secreted to avoid detection of the weapon

(d) Behave in an aggressive manner

(e) Behave unexpectedly

(f) Behave violently

(g) Use violence in a public place

(h) Use a weapon in a lunging motion

(i) Use the right hand when using the weapon

(j) Swinging the weapon with the right hand and aiming it at the head of the person attacked

(k) Swing the weapon a second time at the head of the person attacked

(l) Be affected by drugs at the time of launching an attack

(m) Continue the assault until there is an intervening cause breaking the assault.

1. It was submitted on behalf of Mr Hawi, in effect, that the evidence was "vital and important" in that it would establish, or have the potential to establish, a tendency of the deceased to behave irrationally and violently and to be persistent with such behaviour.

1. Submissions were made on behalf of other accused supporting the admission of the evidence. Submissions were made by Mr Stratton SC for the accused Menzies, and Mr Trevallion for the accused Abounader, which included that the evidence of Sergeant Fotopoulos would provide the jury with an explanation for injuries apparent from the body of the deceased that are not alleged to have been sustained in the course of the events at the airport. I note, however, that there is no suggestion that any other wounds or injuries on Anthony Zervas' body were sustained on 22 March 2009. For that reason, the cause of those other injuries is not a "fact in issue". It is unnecessary for there to be an explanation for them.

1. Other submissions were made by defence counsel, including by Mr Driels for the accused Potrus. He submitted that the conduct of Anthony Zervas on 20 March 2009 could be used to show that the actions attributed to him on 22 March 2009 had nothing to do with any alleged pre-emptive strike by the Comancheros upon the Hells Angels but were the conduct of an irrational man prepared to behave violently and to kill. However, given that there is no suggestion that the presence of Anthony Zervas was known to the Comancheros until some time after they were proceeding east across the rear of the check-in area, anything Anthony Zervas did could have no bearing on whether the Comancheros approached already with a mind to assault the Hells Angels.

1. If the Comancheros were already parties to a joint criminal enterprise to assault the Hells Angels prior to being aware that Anthony Zervas was present, the evidence would not be relevant for the reason advance by Mr Driels. If they reached an agreement to participate in such an enterprise virtually spontaneously upon coming into contact with the Hells Angels, then the relatively immediate actions by Mr Zervas would have no bearing upon that issue either and so I cannot see that the evidence would be relevant upon this basis.

1. The Crown objected to the evidence. The Crown Prosecutor referred to a number of significant facts in issue in relation to events which are said to have occurred in the departure hall of the terminal on 22 March 2009 and, as I understood it, indicated that there was only one of a significant number of facts in issue which this tendency evidence could possibly affect. Therefore, the evidence did not have significant probative value.

The relevant law

1. The evidence in question was sought to be led pursuant to s 97 of the Evidence Act 1995, which is in the following terms:

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. 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]. Having done so, it is then necessary to consider whether the evidence in question has "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.

Consideration

1. There is a marked difference between the cases for the Crown and Mr Hawi on the question of what Anthony Zervas did, or what happened to him, following the initial attack by him upon Mr Hawi. According to Mr Hawi, Anthony Zervas persisted in his attack upon Mr Hawi. There was not just the initial assault with a weapon, which is not in issue, but that attack was sustained and then there was a second and separate assault with another weapon. It seems to me that evidence of similar persistent conduct of Anthony Zervas on 20 March 2009 has the potential to have significant probative value, depending upon the view the jury took of it. It could be of importance in the resolution of a significant fact in issue. For these reasons, I held that the evidence of Sergeant Fotopoulos was admissible.

1. I am not persuaded that the evidence is capable of establishing each and every one of the tendencies that are set out in paragraph 7 of the written submissions of counsel for the accused Hawi. I am, however, satisfied that the evidence is capable of establishing that Anthony Zervas had a tendency to engage in, and persist with, violent conduct with the use of a weapon. Of course, whether the jury accept that to be the case is another matter. But because I am satisfied that such a conclusion is available, and that it could have importance in the resolution of the fact in issue I have referred to, the evidence does have significant probative value.

Anthony Zervas' criminal history

1. The second category of evidence was the deceased's criminal history. It contains multiple entries for offences of violence, but they are, relatively speaking, of a minor nature and the convictions themselves say nothing about the conduct that underlay them. The Crown has provided a very short summary of the facts relating to those matters. It cannot be said that any significant similarities can be drawn between any of those matters and the conduct of Anthony Zervas on 20 March or 22 March 2009 (on any view of that conduct). In the main, they are assaults of a domestic nature. My view is that there could be no significant probative value in relation to them.

Conclusion

1. It was for the foregoing reasons that I held that the evidence of Sergeant Fotopoulos was admissible while the evidence of the deceased's prior convictions was not admissible.

**********

Decision last updated: 14 February 2012