Consideration
43The 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.
44In 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.
45If 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.
46Evidence 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.
47For 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.
48Further, 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.
49The 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.
50It 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".
51The 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.
52If, 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.
53Quite 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.
54As 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.
55The 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".
56In 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.
57I 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.
58Similarly, 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.
59Some 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.