R v Hawi & ors

Judgment 1HIS 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. 2One 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. 3The 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." 4The 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. 5Notice 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". 6The 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. 7AL 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. 8AL'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). 9When 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) 10In 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). 11The notice given on behalf of the accused Menzies refers to the following evidence which is said to establish the asserted tendency: