R v Hawi (No 4)
[2011] NSWSC 1650
•16 May 2011
Supreme Court
New South Wales
Medium Neutral Citation: R v Hawi & ors (No 4) [2011] NSWSC 1650 Hearing dates: 11 May 2011 Decision date: 16 May 2011 Jurisdiction: Common Law - Criminal Before: R A Hulme J Decision: Evidence not admissible
Catchwords: CRIMINAL LAW - evidence - whether relevant - whether relevance outweighed by danger of unfair prejudice - evidence of prior surveillance of Hells Angels member by Comancheros Category: Procedural and other rulings Parties: Regina
Mahmoud Hawi
Christian Adam Menzies
Farres Abounader
Canan (aka Ishmail) Eken
Usama Potrus
Zoran Kisacanin
David PadovanRepresentation: Counsel:
Ms N Adams with Ms H Roberts (Crown)
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
Judgment on admissibility of evidence of SP conducting surveillance upon Peter Zervas two weeks prior to the airport incident
The Crown proposes to adduce evidence from the witness known as SP which is generally to the effect that two weeks prior to the incident at Sydney airport on 22 March 2009 he, and other nominee members of the Comanchero motorcycle club, were directed to carry out surveillance upon certain Hells Angels members, particularly Peter Zervas, the brother of the deceased, Anthony Zervas. The Crown proposes to lead this evidence only in the case against Mr Hawi and Mr Abounader. It is asserted to be admissible against Mr Abounader because he was directly involved in the events. The Crown contends that it is admissible against Mr Hawi because, having regard generally to the hierarchical command structure of the club, the inference is available that such activity would not occur without at least the knowledge, if not the sanction, of the national president.
Mr Grant, counsel for the accused Hawi, and Mr Trevallion, counsel for the accused Abounader, have both indicated that they object to the evidence. Counsel for the other Comanchero accused (Messrs Menzies, Eken, Potrus and Kisacanin) also object, even though the evidence is not sought by the Crown to be admitted in their cases.
The evidence is that nominee members were called to a meeting at the home of Mr Herb Laupepa, the Comanchero sergeant at arms, about two weeks prior to 22 March 2009. They were shown confidential police documents relating to Hells Angels members which included photographs. There is some evidence suggesting that the Comanchero had an inside source in the Police Department who provided the confidential documents. SP was shown one that concerned Peter Zervas. There was a photograph and an address. The nominees were directed to carry out surveillance in order to determine if the addresses were current.
Immediately after the meeting, SP and another nominee travelled to Lakemba to the address indicated for Mr Peter Zervas and lay in wait. Eventually they saw a man arrived by car. SP thought that the man looked like Peter Zervas. A phone call was made to indicate, "we think we found them" . There was a return phone call from the accused Abounader who asked them to "stay where they were" . Despite that, SP and his companion met up with Abounader, his former co-accused Costa and Aouli (they have pleaded guilty and await sentence) and another Comanchero at a service station in Revesby.
Mr Abounader rebuked SP's companion for leaving the address. The ensuing discussion included SP and his companion telling the others that they were "pretty sure" that the address was still that of Peter Zervas. The others left and SP later received a call from Mr Abounader who described a car in the same terms as that in which SP had earlier seen Peter Zervas.
SP was a participant in the events at the airport on 22 March 2009 and has pleaded guilty and undertaken to give evidence for the prosecution. As a consequence, he is a witness whose credibility is expected to come under attack. The Crown has available certain evidence, which it will adduce if necessary, that it will contend supports that of SP on the present subject. The description SP gave of the photograph of Peter Zervas that he was shown is consistent with the photograph which was current on police files at the time. The person thought to have the contact with an inside source in the Police Department is known to have had an association with a former detective who is under investigation by the Police Integrity Commission for, inter alia, providing confidential police information to others, including motorcycle clubs like the Comanchero.
There is, it seems, no evidence to establish the identity of the other Hells Angels members whose photographs and addresses were shown to the other nominee members at the meeting at Mr Laupepa's house and it is not known whether they carried out surveillance as SP did in respect of Peter Zervas.
The Crown asserts that the evidence is relevant in the following way. One of the central issues in the trial concerning the accused Hawi and Abounader will be their state of mind when they, and other Comanchero members, approached Hells Angels members in the departure hall. The Crown case is that they had an intention, at least, to assault the Hells Angels. The Crown anticipates that Mr Hawi and Mr Abounader may contend that the approach was either accidental, in that they were lost on their way to the baggage claim area, inadvertent, or otherwise innocent of any criminal intent.
The jury will have other evidence from which it will be able to resolve this factual dispute, such as eyewitness accounts, CCTV footage, the evidence of SP as well as that of AL (another accomplice witness) and the general layout of the airport terminal. There is also a proposed agreed fact that there was hostility between the Comanchero and Hells Angels clubs. Notwithstanding this evidence, the Crown says that the evidence of the surveillance upon Peter Zervas a short time before 22 March 2009 will also assist the jury in resolving this factual dispute. The fact that Peter Zervas was known to Mr Hawi and Mr Abounader and was of some interest to them could be regarded by the jury as being inconsistent with any claim that their approach to the Hells Angels in the departure hall was accidental, inadvertent or otherwise innocent.
There are a number of problems with this. I very much doubt that the evidence is relevant but, even if it is, its probative value is outweighed by a danger of unfair prejudice.
Apparently there is evidence of a proposal that Peter Zervas be "knocked" (murdered). That would tend to be a reason for wanting to confirm his address. But the Crown does not propose to lead this evidence. That is understandable. However, it leaves this surveillance evidence as establishing that Comanchero members had some interest in Peter Zervas and a number of other, unnamed, Hells Angels. The fact in issue is the state of mind of Messrs Hawi and Abounader as they came into contact with the Hells Angels in the departure hall. I am unable to see how evidence of a previous unspecified interest in Peter Zervas and other Hells Angels, if accepted by the jury, could rationally affect, either directly or indirectly, the jury's assessment of the probability of the existence in the minds of Messrs Hawi or Abounader of a hostile intention.
If the evidence was to the effect that Peter Zervas was a specific target or focal point of hostility by the Comanchero members at the airport on 22 March 2009, the evidence might have some relevance. However, as the Crown case was explained to me by the Crown Prosecutor in the course of her submissions, it does not seem that Peter Zervas was of any greater interest to the Comanchero members than any of the others in the Hells Angels group. True it is that there is evidence of a verbal argument involving him and Mr Hawi at the commencement of the incident. But I do not understand the case to be that the animosity from which this emanated was confined to just Peter Zervas. The animosity extended to all Hells Angels as the agreed fact indicates and the incident near Gate 5 a short time before tends to confirm.
All that the surveillance evidence is capable of establishing is that there was prior animosity between the Comancheros and Peter Zervas and other Hells Angels. The agreed fact establishes that.
The submissions of various counsel for the accused identified a number of ways in which the evidence could be unfairly prejudicial. Mr Grant submitted on behalf of the accused Hawi that the jury would speculate about what the purpose of the surveillance was and how the Comanchero came to be in possession of confidential police documents. Mr Trevallion on behalf of the accused Abounader submitted that the possible purposes of the surveillance were many but the jury may well conclude that it was for a sinister purpose (which seems to have been the reality). Mr Stratton SC, counsel for the accused Menzies, expressed a concern that even if the evidence is not admitted against his client, it would be difficult for the jury to ignore the evidence no matter what directions were given. The jury might use it as strengthening the Crown's case that the Comanchero accused had an intention to harm or kill the brother of the surveillance target. Mr Driels, on behalf of the accused Potrus, expressed concern about the additional evidence the Crown may lead concerning the source of the confidential police documents. This may introduce into the trial the notion that the Comanchero motorcycle club had a relationship with corrupt police.
Some of these concerns are more valid than others but it is unnecessary to consider them in any detail. If the jury is not given any direction about the lack of evidence of the purpose of the surveillance, it is highly likely they will speculate that it was for some sinister purpose and give the evidence greater weight than it deserves when assessing the state of mind of Mr Hawi and Mr Abounader on 22 March 2009. If the jury are directed against engaging in any such speculation, it is highly likely that the direction would simply achieve the opposite of what was intended.
If the evidence has any probative value, it is minimal and is outweighed by the danger of unfair prejudice. It is not admissible.
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Decision last updated: 09 February 2012
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