R v Hawi & ors - [2011] NSWSC 1665 - NSWSC 2011 case summary — Zoe

NSWNSWSC

R v Hawi & ors

[2011] NSWSC 1665

Supreme Court of NSW|2011-08-16|Before: Hulme J, Mr J, Whealy J, Spigelman CJ

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At a glance

Source facts

Court

Supreme Court of NSW

Decision date

2011-08-16

Before

Hulme J, Mr J, Whealy J, Spigelman CJ

Catchwords

2009/127777

Source

Original judgment source is linked above.

Catchwords

2009/127777

Judgment (1 paragraphs)

[3]

The relevant principles may be shortly summarised as follows: (a) The Crown case must be taken at its highest and it is for the jury, not for the judge, to resolve conflicts of evidence. (b) Where there is evidence (even if tenuous or inherently weak or vague) which can be taken into account by the jury in its deliberation, and that evidence is capable of affording a verdict of guilty, the matter must be left for the jury for its decision. (c) It is not the task of the Court to form any view as to whether a conviction would be unreasonable having regard to the evidence. That is a matter for the Court of Criminal Appeal under the appeals system in the Criminal Appeal Act 1912. It is not a matter for the trial judge, whatever may be his views. (d) It is not sufficient in a circumstantial case for a judge to conclude that there may be a reasonable hypothesis consistent with innocence (see R v JMR (1991) 57 A Crim R 39). Indeed, the presence of competing hypotheses, a not unusual situation in a criminal trial, and the question whether they have been excluded by the Crown, is a matter for the jury to resolve. It is not a matter that is determinative, or even relevant, to the application with which I am dealing."

Some general matters as to the Crown case 7The Crown relies upon an agreed fact that there was ongoing hostility between the Comanchero and the Hells Angels and that the accused was aware of this. It also relies upon evidence that the Comanchero motorcycle club was an organisation with a hierarchical structure. Evidence was given by Detective Sergeant Groenewegen that it was governed by strict rules setting out the behaviour expected from members. Such rules reinforce a strong culture of loyalty of members towards one another and to the club. Punishments are prescribed for breaches of the rules. 8Those rules included:

Any display of cowardice will not be tolerated.
A nominee will at all times, regardless of the circumstances, be directed by members in authority.
A nominee shall carry out whatever the club may deem to be a fair task which applies to being on-call 24 hours a day. This is unless it has some detriment to his character or his self-esteem.
A nominee is an emissary of the club and will conduct himself as a Comanchero. Their actions will reflect the Comanchero. They will be held directly responsible and accountable for their actions. 9There is evidence that Mr Kisacanin was a nominee member (T2612) and so the latter three of those rules applied to him. 10There is evidence before the jury by SP to the following effect (T2611 -2615). After contact had been made by Comanchero members on the flight before it departed Melbourne, SP received a call from the accused Usama Potrus who asked him to come around and pick him up. SP did so. He then rang Mr Kisacanin and AL and they proceeded to pick up those two. Mr Kisacanin had told him on the phone that he was not at home and that he was busy, but nonetheless he agreed to go. 11I interpolate in this account of SP's evidence that the telephone records show that Mr Kisacanin received a call from SP at 12.09pm. He made a call back to SP at 12.15pm. He received a call from Mr Rui Antao (see below) at 12.17pm. Then, between 12.28pm and 12.48pm, there was a series of telephone contacts between Mr Kisacanin and Mr Abounader, Mr Kisacanin and SP and Mr Kisacanin and Mr Potrus. Mr Gordon referred to the lack of evidence as to the content of these communications. Apart from the evidence of SP, to which I have just referred, that much is true. However, it would be open to the jury to conclude from the totality and timing of these calls and texts (together with the evidence to which I am about to refer) that most, if not all of them, had something to do with the perceived need for Comanchero members to gather in numbers and quickly get to the airport. 12SP said that when he had first seen Mr Potrus, he had been told that they were "going to the airport to pick up Mick [a reference to the accused Mahmoud Hawi] and some of the other boys on the plane ... there was maybe some Hells Angels on the same flight or going to be at the airport at the same time". Mr Potrus repeated as much to Mr Kisacanin and AL when they were in the car. 13The carload of now four Comanchero members then proceeded towards the airport. On the way, Mr Potrus received calls from the accused Farres Abounader. As a result, the car was redirected to Brighton. At Brighton, there was gathering of other Comanchero members. In addition to the four in the car that included Mr Kisacanin, there was Mr Daux Ngakuru, the commander of the accused's chapter of the Comanchero; Mr Rui Antao, the "nom boss" (in charge of nominee members); and there was another car which contained Mr Abounader, the "road captain", Mr Tiago Costa, the club secretary, and Mr Frank LaRosa, the club treasurer. Mr Kisacanin was not privy to the discussion that ensued but the two carloads of Comanchero (but not Messrs Ngakuru and Antao) then proceeded to the airport. 14It would be open to the jury to conclude that these seven men proceeded to the airport with some haste. The two cars were parked illegally in front of the terminal. Mr LaRosa suggested that he would stay with the cars but he was told by Mr Abounader to come inside. All of the occupants immediately proceeded inside. Five of them, including Mr Kisacanin, passed through security screening and went to Gate 5 where the arriving flight was due. Two waited outside, it being the Crown case that Mr Abounader could not go through the metal detectors because he was carrying a knife. Mr Potrus waited outside in the departure hall with him. 15What I have outlined thus far is the background upon which the Crown relies for the assessment of the evidence of the events that then occurred, first at Gate 5, and then a short time later in the departure hall. A number of inferences are open to the jury to draw from this background. Mr Gordon submitted that the evidence supports an inference that what was within contemplation was the need to go to the airport to act "as it were, as a guard to Mr Hawi" and that "nothing arises as a further inference than that" (T3690.15). 16In my view, however, it would be open to the jury to conclude that Mr Kisacanin knew that there was a possibility of something occurring between the members of the Comanchero and the Hells Angels at the airport. He, and six other Comanchero members had been summoned to attend. The seven who were to attend the airport were first required to go to Brighton where there was a meeting involving senior Comanchero members. The jury could well conclude that it was apparent to Mr Kisacanin that this was not just an exercise in going to the airport to pick up some friends who had been away on a trip. The fact is that there were only two cars taken to the airport; they were occupied by seven men; and they were to meet five men arriving on the flight to Melbourne. Even if the jury were to accept a submission that Mr Kisacanin contemplated that there was a need to "guard" Mr Hawi, they could infer from this that the need for a guard was because there was a prospect of a violent confrontation. 17The Comanchero club, with its rules and structure, required Mr Kisacanin, as a nominee member, to be loyal and obedient to more senior members. Whilst there is no evidence that Mr Kisacanin was ordered or directed to do anything in particular on 22 March 2009, as Mr Gordon submitted, there is an inference available that he understood that there was an expectation upon him to support his fellow members, particularly in respect of any conflict with members of the Hells Angels.

The Gate 5 affray 18When Mr Wainohu and the five Comancheros disembarked from the flight at Gate 5 they were met, respectively, by two members of the Hells Angels (David Padovan and Tom Baker) and five members of the Comanchero (Messrs Kisacanin, Costa, LaRosa, SP and AL). 19It is unnecessary to go into great detail in relation to all that occurred in the vicinity of Gate 5. Evidence has been given by a large number of airline staff, staff who were working in shops in the vicinity, and members of the general public about what they saw and heard. Given that the events were unusual, unexpected, chaotic and relatively short-lived, it is unsurprising that there is a wide divergence in what each of these witnesses were able to observe and recall. It is sufficient to say that it would be open to the jury to conclude that after an initial confrontation between, at least, Messrs Wainohu and Hawi, there was a violent brawl involving members of two opposing groups. 20It is not controversial that the attention of the Comancheros, or some at least, was then focussed upon Mr Padovan. The Crown does not contend that Messrs Wainohu and Baker were aggressors in the fighting at Gate 5 (or later in the departure hall). It also seems to be uncontroversial that Mr Padovan was chased in a westerly direction down the concourse and assaulted. The clothing on his upper body was removed. Witness descriptions frequently made reference to "the man without the shirt" or similar. Some of the witnesses describe Mr Padovan being on the ground being kicked and punched (for example, T241; T275; T385). 21The pursuit and assault of Mr Padovan is the major, but not the only, component of the evidence of the events at Gate 5 upon which the Crown relies in contending that the offence of affray occurred. A specific item of evidence upon which the Crown relies for an assertion that Mr Kisacanin was involved is footage from a security camera from within the Watermark bookstore. The Crown Prosecutor played this footage during the course of her submissions on the no case application. It is her contention that it shows that when a group of Comanchero men can be seen in what must be the pursuit of Mr Padovan in the direction that had been described by various witnesses, Mr Kisacanin can be seen as one of those men. It is also evident from that footage that at least some of the pursuers then engaged in an assault upon the man who must have been Mr Padovan. 22It must be noted that none of the footage from the many security cameras at the airport provides clear images of the activity of the Hells Angels and Comanchero men in the events in question. The resolution of the images is quite low and the figures depicted are often grainy and blurred. In many cases it is a matter of perspective or deduction in piecing together footage from different cameras and marrying it with eyewitness descriptions. 23In relation to the footage from the Watermark bookstore to which my attention was invited by the prosecutor, I am satisfied that it is sufficiently clear to enable the jury to draw the inference, in the context of other evidence, that the person she indicated was Mr Kisacanin. The image is insufficiently clear to enable discernment of facial features. Clothing and footwear worn by the person is, however, sufficiently distinctive for the jury to conclude that the person was Mr Kisacanin. It would appear that the person leading the pursuit, or near to the lead of the pursuit, of Mr Padovan is AL. He is a man of distinctive appearance, not only in terms of his build, but also because of his bright blue Hawaiian shirt. The Watermark footage shows a person who the Crown asserts is Mr Kisacanin following closely behind AL. 24I am satisfied that it is open to the jury to conclude that Mr Kisacanin was involved in at least the pursuit of Mr Padovan for the purpose of continuing the assault upon him. If accepted, this would be sufficient for the jury to conclude beyond reasonable doubt that Mr Kisacanin was a party to the affray at Gate 5. There is a case to answer in respect of this count.

The departure hall riot and murder 25It is common ground that after the events at Gate 5 came to an end, the 10 Comanchero men proceeded down a corridor and out through some security bi-fold doors at which point they emerged into the departure hall. In the centre of this very large area there were 14 pairs of check-in counters, all in a row. There was a significant space between the back wall of the departure hall and the back of the check-in counters and also between the front of the counters and the front wall and entry/exit doors of the terminal. 26When the 10 Comanchero men emerged from the bi-fold doors they were met by Messrs Abounader and Potrus. They had the geographical option of proceeding immediately to their right, down some escalators to the arrivals hall and the baggage collection carousels. Four bags had been checked in on the flight. They were in the name of the accused Eken. It would be open to the jury to conclude that this path would have been the one they most likely would have taken in order to retrieve the bags. 27The Comanchero men did not, however, proceed down the escalators but straight ahead into the space between the back of the check-in counters and the back wall of the terminal. There was a group of five Hells Angels at the time, loitering around 60 to 70 metres away, at around the back of some of the furthest check-in counters. 28There has been some suggestion in cross-examination that the Comanchero men were simply proceeding to the escalators at the furthest end of the terminal in order to proceed down to the arrivals hall to collect their luggage. This, I take it, is designed to suggest that there was nothing sinister in the Comanchero group of now 12 men proceeding in a direction that would bring them unwittingly into the presence of the loitering 5 Hells Angels. That might be a possibility for the jury to consider. But it would be well open to the jury to consider that the Comanchero group advanced in that direction because it was intended to confront the Hells Angels. In this regard, I note that there is evidence that Mr Hawi was no stranger to arriving on Qantas flights at the Sydney domestic terminal (T3265). Even if none of his companions were familiar with the layout of the terminal, it might seem to the jury to be odd that he would happily walk with them a distance of about 150 metres to the escalators at the furthest end of the terminal rather than going downstairs via the escalators immediately outside the security doors. 29The events which ensued in the departure hall need only be described briefly. It is uncontroversial that fighting erupted when the two groups came together at the back of the check-in counters. The fighting continued as men moved between the check-in counters to the front of the terminal. There is no dispute that the deceased was the first to strike when the fighting commenced. As the men moved through to the front of the terminal it was necessary for them to negotiate their way between members of the public who were queuing to check-in. Witness descriptions include that bollards used in the queue control system were detached and used as weapons. The fatal assault upon the deceased occurred near the front wall of the terminal. There is evidence that he was struck at least once by the base of a bollard. There is also evidence that he was stabbed a number of times. 30The Crown referred to evidence from a witness to the events at Gate 5. She was the manager of one of the stores in that area and saw certain aspects of the fighting that occurred in that location. She referred to one of the men's jumper being on the ground and a man picking it up. That man said, "Is that your jumper? Get up, the cops are coming, let's go, we'll finish it outside" (T790). The jury may well think that there is some inaccuracy in this evidence, but I understand the Crown to rely upon the latter aspect, "we'll finish it outside" as an indication of a desire of the speaker to continue the fighting, but elsewhere. There is security camera footage that is well capable of persuading the jury that the person who subsequently had possession of what was probably Mr Padovan's jumper was Mr Kisacanin. 31Mr Gordon's submissions in relation to this evidence included that even if the jury were to consider that Mr Kisacanin did have possession of Mr Padovan's jumper, there is no evidence that he was the person who actually picked it up. Somebody else may have picked it up and handed it to him. Therefore, the words uttered, according to the shop manager, could not safely be attributed to him. 32Mr Gordon also referred to some contradictory evidence that the witness gave. In her evidence in chief she said that she could not describe the person who picked up the jumper (T790.36). In cross-examination she said that it was the man without the shirt (Mr Padovan) who picked up the jumper (T794.20; T800.19). At another stage in cross-examination she said she was not sure who picked it up (T795.50). When I asked her for clarification of this inconsistency, she confirmed that she was not sure (T798.32). 33Mr Gordon's submission was that the witness should be understood to be asserting that it was the man without the shirt (Mr Padovan) who picked up the garment. That is unlikely to be accepted by the jury. Mr Padovan can be seen on security camera footage leaving Gate 5 without a shirt on and not carrying anything. Mr Kisacanin, on the other hand, is seen to leave Gate 5 with a garment in his hand. It is hardly likely that Mr Padovan picked up his own jumper and then gave it to Mr Kisacanin. 34The evidence in chief of the witness as to who made the statement that she heard was as follows: "Q. And then you heard someone say, "Is that your jumper, get up, the cops are coming, let's go, we'll finish it outside", are you able to describe the person who said those words? A. No, I didn't see any of them in the face or I don't really remember much of what they were wearing, it just happened as fast as it did and finished as fast as it did. Q. Are you able to say, when you heard those words, who these were being said to? A. No. Q. After you heard those words said, did you see something or hear something? A. No. They pretty much - whoever it was picked it up and they just all went into that direction. Q. Picked what up? A. The jumper. Q. Can you describe the person that picked up the black jumper? A. I wouldn't be able to, no." (T790) (Emphasis added) 35In cross-examination she said that she was not sure who made the statement (T796.8). 36For the Crown's contention to be made good, the jury would need to be persuaded that the reference to "whoever it was", was a reference to whoever made the statement that the witness heard, and that it was this person who picked up the jumper. The alternative inference is that "whoever it was" was confined to whoever it was who picked up the jumper. It seems to me that it would be highly unlikely, if not impossible, that the jury could draw one inference in preference to the other. 37For what is to follow it is necessary to say something more about the layout of the check-in counters. There were 14 booth structures with a counter on each side of the booth and conveyer belts for checked-in luggage on the inner side of each counter. Looking at the terminal from the street, the counters were numbered from right to left (east to west), 1 to 28. Counters 1 to 8 were for business class check-in. They were separated by an aisle from the economy counters which proceeded, from right to left, as counters 9 to 28. When the Comancheros proceeded from the area of the bi-fold doors into the departure hall, the closest counter to them was number 28. 38The security camera footage displays the Comanchero group proceeding in a straight line, in an easterly direction, along the back of the check-in counters. However, after they had passed two booths (counters 25 to 28), Mr Kisacanin is clearly seen to peel away from the group, run through the gap between counters 24 and 25 and then immediately turn to his left (east). At the same time as he is seen to run in that direction, it would be open to the jury to conclude that the remaining Comanchero group hastened their pace in the direction of the Hells Angels group which was near to the rear of counters 9 to 12. 39The vision to which I have just referred includes that from which the jury could well conclude that Mr Kisacanin was still in possession of Mr Padovan's jumper. That has two points of significance. I have referred to the Crown's contention that it was Mr Kisacanin who uttered the words back in the vicinity of Gate 5, "we'll finish it outside" , an indication of a preparedness to engage in further fighting. That point is very dubious. The second aspect of significance is that a black jumper was found in the subsequent police investigation on the ground in front of counters 12 and 13. After the fighting commenced at the rear of about counters 9 to 12 or so, the participants, as I have earlier noted, moved towards the front of the terminal between counters which were likely those numbered about 9 to17. Various items found on the ground between and in front of those counters support that conclusion. 40The Crown submission is that it would be open to the jury to conclude that Mr Kisacanin peeled off from the Comanchero group when they were behind counters 24 and 25. He was not fleeing perceived danger, because he immediately turned to his left (east) when he emerged at the front of the counters. This invites the inference that the jury may draw that Mr Kisacanin was simply taking an alternative route to join in an anticipated melee. He was circling around to enter it from a different angle. The garment he carried was later found in front of the check-in counters, in the vicinity of where the brawl behind the counters moved through to. 41It was submitted for the accused that if the jumper was dropped exactly where it was found, in front of counters 12 and 13, then this was consistent with it having been dropped when Mr Kisacanin was in imminent danger from, and fear of, the fighting men coming through from behind the counters to the front. That is a submission that could be made to the jury but it is not the only conclusion that they could draw. 42Mr Gordon submitted that the security camera footage indicates that Mr Kisacanin departed from the Comanchero group and proceeded through the check-in counters at the very point in time when the deceased commenced to attack Mr Hawi. Something was said by Mr Abounader at about that time to the effect that the deceased had a gun. Thus, it was submitted, Mr Kisacanin was simply taking action to avoid a dangerous situation. Such a submission could be made to the jury but it is unlikely to be accepted. The Comanchero and Hells Angels groups did not come together until they were in the vicinity of about counters 9 to 12. Mr Kisacanin made his move to the front of counters when the Comanchero group was still about 30 metres away from the Hells Angels and still advancing in their direction. 43The Crown also referred to the evidence of a witness who, from a position at the back of the terminal, observed the brawl commence behind the counters (T1206ff). She referred to two men approaching the brawl from the other direction, from between the counters. She said that these two men blended in and that they were fighting (T1209 - 1210). The Crown Prosecutor submitted that this was consistent with Mr Kisacanin coming in to join the fight. Mr Gordon submitted that the evidence of this witness as to the two men was consistent with her describing Peter and Anthony Zervas. I am satisfied that it would be open to the jury to conclude that she described those two men separately to her description of the two men to which the Crown referred. 44Further evidence which the Crown relies upon for the contention that Mr Kisacanin was a participant in the fighting came from a witness who was a Qantas staff member (T945ff). She was working at counter 3. Her attention was caught by the noise of men yelling. She saw " a rush of men coming through the little gaps between the counters" which she estimated were counters 13 to 18. She gave evidence of a number of specific incidents that she observed, including a man picking up a bollard and swinging it. She did not see what happened as a result because she looked away in order to press a duress button. She described the man who picked up the bollard as having a "big build, in a dark grey singlet, tattoos". Asked to describe the tattoos, she said, "I was too far away to give any detailed description of his tattoos but there were tattoos on his arms" (T948.4). Mr Kisacanin does not have tattoos. The Crown contends that this witness was mistaken about that aspect of the description but contends that the description of the man having a big build and a grey singlet is a match for Mr Kisacanin. 45Mr Gordon submitted that it would not be open to the jury to conclude that the man the witness described was Mr Kisacanin because of the inclusion in the description of tattoos. In my view it would be open to the jury to accept that witnesses may be correct about some things whilst being incorrect about others. It would be open to the jury to accept that the witness was correct in describing the clothing of the man, whilst also accepting that there was inaccuracy in the description of him having tattoos, particularly given that many of those involved in the melee in the same vicinity had prominent tattoos. 46SP gave evidence of Mr Kisacanin with a bollard: "Q. Did you see Zoran Kisacanin at all during this time? A. Yeah, he was on the right-hand side of me, near the glass doors. Q. And did you see him do anything? A. No. Q. Did you see him touch anything? A. I just saw just the hand on a bollard but he didn't pick it up, just more resting on it." (T2628) 47In cross-examination by Mr Gordon, SP confirmed that he had given the following answers in a police interview on 24 August 2009: "Q402. Okay, you said that you saw Zoran had his hands, Zoran Kisacanin, sorry, had his hands on the bollard but he didn't pick it up? A. Yeah. Q403. Did you have like a view of Zoran Kisacanin the whole time, were you watching him the whole time? A. Downstairs, yeah, I was - we were fairly close." (T2925-2926) 48It would be open to the jury to doubt that SP was entirely accurate when he said that he was watching Mr Kisacanin for the "whole time", given that SP's evidence was that he observed quite a number of other aspects of the incident. The Crown does, however, rely upon his evidence for confirmation of Mr Kisacanin's involvement with a bollard. Further, as I understand it, the Crown contends that SP cannot be taken to be correct when he said that Mr Kisacanin was "more just resting on" a bollard. It could be taken to be rather unlikely that Mr Kisacanin was casually resting on a bollard while mayhem was going on around him. 49Another witness who observed the fighting in the departure hall said that she saw a man pick up a bollard and start swinging it violently at people. She said other men also picked up bollards and that she counted five bollards in the air at any one time, being swung and hit at people (T2294). 50Other evidence relating to the contention that Mr Kisacanin had a bollard is within the security camera footage and the footage taken by a tourist. Security camera 404 was focused to the north down the aisle between the business and economy check-in counters. In a very short segment of the footage from that camera, Mr Kisacanin is seen to come into vision, from the area where the fighting occurred, and put a bollard down. This is in an area in which there were no bollards and so it would be open to the jury to conclude that Mr Kisacanin carried the bollard from the area where the fighting was occurring and put it down at a point when he felt he had no further need for it. This footage, at least, may further persuade the jury that SP's evidence referred to above cannot be taken to be entirely correct. It may also be taken by the jury as tending to confirm Mr Kisacanin's use of a bollard in the course of the fighting. 51The video footage taken by the tourist (T2346ff) was very short, some 16 seconds. The tourist was standing quite a distance away from the action, just to the west of counter 28. Four hundred and five still images have been produced from the footage (Exhibit GB). The Crown Prosecutor referred me to images that commence 2.36 seconds into the recording and submitted that there is depicted a man with a white cap, a singlet and black shoes, all items that were worn by Mr Kisacanin. It was submitted that it can be discerned that this man was holding a bollard. Whether that is so is a matter for the jury but I am satisfied that the submission is available to the Crown to make. 52My own perception of the images (from 1.88 seconds to 2.88 seconds) is that they depict a bollard being picked up by a man who is very difficult to make out, probably because he is wearing dark clothing. That man then moves towards the front of the terminal, very closely followed by the man, who the Crown asserts is Mr Kisacanin, who is also carrying a bollard. This person comes into view with the bollard already held, at an angle that is close to horizontal. 53Mr Gordon submitted that the man depicted is in fact Mr Padovan. He, like Mr Kisacanin, wore a white baseball cap and dark shorts. Mr Padovan, however, had no shirt on and wore lighter coloured shoes, whereas Mr Kisacanin wore a grey singlet and had dark shoes. It seems to me that it would be open to the jury to make an assessment as to the clothing and shoes worn by the person in the still images and it is possible that they could conclude that the appearance is more likely to be Mr Kisacanin than Mr Padovan. 54To summarise, the Crown contends that the foregoing evidence is capable of persuading the jury that Mr Kisacanin went into the area where the fighting occurred and that he used a bollard in the course of the fighting. I am satisfied that such a case is available to be made and is open to the jury to accept. Whether the jury might accept it, of course, is a completely different matter about which I express no view.

Other submissions on behalf of the Accused Kisacanin 55I have interspersed the foregoing discussion of the evidence upon which the Crown relies with references to submissions which were made on behalf of the accused. Other submissions were made that I have not referred to. It is a sufficient response to those submissions to say that, like many of those I have referred to, they represent alternative arguments that may be put to the jury as to the inferences that should, or should not, be drawn. Some of them are concerned with highlighting what evidence is not before the jury; for example, there is no eyewitness evidence to the effect that a man wearing a distinctive white baseball hat was seen to be doing anything in the course of the fighting in the departure hall. However, on a consideration of whether there is a case to go to the jury, attention must be given, not to what evidence is absent, but on what evidence is present. None of the submissions to which I have not made specific reference have the effect that the conclusions for which the Crown contends are not available to the jury at all. 56Despite what I have just said, there is one further submission that warrants a response. The Crown Prosecutor made reference in her submissions to evidence that upon his arrest at 2.08pm on 22 March 2009, Mr Kisacanin did not have a wallet or a driver's licence and only $5.00 in cash and a telephone. This supported the Crown's contention that he "very hastily heeded the call ... to go to the airport" (T3681.32). Mr Gordon asked, rhetorically, "so what?" (T3700.23). He referred to the evidence of SP who had confirmed that there had been conversation in the car on the way to the airport to the effect that Mr Kisacanin was intending to fly to Brisbane that afternoon. Mr Kisacanin was working in Queensland at the time. It was submitted that he had a free lift to the airport; he had no need for his driver's licence; and he had no need for any money. 57Mr Gordon referred to evidence that was anticipated would be given in the defence case. It is not appropriate to consider that on the present application. On the evidence that is presently available, it would be open to the jury to reject such a contention. They could well ask themselves why a person intending to catch an interstate flight would carry with them very little money, and no luggage, ticketing documents or any form of identification. All this does is enhance the prospect of the jury drawing the conclusions that (a) Mr Kisacanin did attend the airport in haste, and (b) he fled the airport because of consciousness of guilt.

Murder 58The Crown case in respect of Mr Kisacanin on the count of murder is that he was either a party to an agreement to inflict grievous bodily harm upon someone in the Hells Angels group, or that he was a party to an agreement to assault someone in the Hells Angels group with the contemplation that a possible incident of that occurrence was that grievous bodily harm would be inflicted by one of the parties to such agreement. Mr Gordon has submitted that there is no evidence of this. 59The short answer is that upon the evidence I have reviewed above, and upon consideration of all of the circumstances that are capable of being regarded by the jury as having been established, there is a case of murder to go to the jury on each of the bases for which the Crown contends. 60There is evidence from which the jury could conclude that Mr Kisacanin was actually involved in the fighting that occurred in the departure hall. There is evidence from which the jury could conclude that at least by the time he entered the departure hall, Mr Kisacanin must have realised that he, and/or his fellow Comancheros, were about to embark upon an assault of considerable ferocity. From his perspective, he had just seen a violent assault upon one Hells Angels member in the vicinity of Gate 5. He was in the vicinity when extremely violent threats were uttered by the president of his club at the conclusion of events near Gate 5. The jury could conclude that when he was part of the group of Comancheros who were advancing through the departure hall towards the Hells Angels group, he was well aware that his group outnumbered the opposition by 12 to 5. It is open to the jury to conclude that there was, by at least this stage, a tacit agreement to which Mr Kisacanin was a party that Hells Angels would be assaulted. It would also be open to the jury to conclude that Mr Kisacanin was a party to an agreement that grievous bodily harm would be inflicted. The simultaneous actions of persons can sometimes be the measure of whether they share a common purpose. It would be open to the jury to draw conclusions based upon the actions of Mr Kisacanin and the members of his group, particularly by their use of heavy metal bollards as weapons. The jury could well conclude that the infliction of grievous bodily harm was contemplated, and perhaps intended. 61In my view, there is sufficient evidence for the case of murder as propounded by the Crown to go to the jury.

Riot 62Mr Gordon submitted that the Crown cannot establish the offence of riot. In his submission, it is necessary for the Crown to be able to prove beyond reasonable doubt that all 12 of the Comancheros used unlawful violence for a common purpose. Attention was invited to Anderson v Attorney-General for New South Wales (1987) 10 NSWLR 198. 63Anderson was a case in which the Court of Appeal was concerned with an application for a declaration that an indictment was bad in law. Thirty-one accused had been jointly indicted for a single count of riot in respect of events which occurred one Easter at the Bathurst bike races. It was alleged that a "riotous assembly" took place between 8.07pm on 6 April and 4.30am on 7 April 1985. The offence alleged against each accused occurred at different times during that period and the location where the offence was alleged to have occurred varied from person to person. Some accused were removed, by having been arrested, before other accused were said to have become involved. 64The issue raised for consideration was whether it was permissible to jointly charge the accused in a single count, when participation in the alleged riot took place at varying times and places. This called for an examination of the elements of the common law offence. McHugh JA referred to authorities going back centuries and concluded (at 210) that the elements were as set out in Field v Metropolitan Police Receiver [1907] 2 KB 853 at 860: "(1) Number of persons, three at least; (2) common purpose; (3) execution or inception of the common purpose; (4) an intent to help one another by force if necessary against any person who may oppose them in the execution of their common purpose; (5) force of violence not merely used in demolishing, but displayed in such manner as to alarm at least one person of reasonable firmness and courage." 65Mr Gordon submitted that it was the prosecution case that there was one purpose that was common to the Comancheros and another purpose that was common to the Hells Angels. He submitted that there could be no common purpose shared between the members of the two groups. He focused upon the element numbered four in the extract above, about which McHugh JA also said (at 210F): "Accordingly, the authorities strongly support the proposition that it is an essential element in the offence of riot that each of the participants had the intention to help each other, by force if necessary, against any person who might oppose them in the execution of their common purpose. It necessarily follows that, if a number of persons are charged with the one offence of riot, they must have each had both a common purpose and an intention to help each other, by force if necessary, against any person who might oppose them in execution of that common purpose." 66The Crown Prosecutor responded by reminding me of the position stated in her opening address (T83). In referring to the count of riot with which Mr Padovan is charged, she said that it was unnecessary for him to have been on the same side as the Comancheros for there to be a common purpose. The common purpose alleged by the Crown was "for them to fight each other". She also informed the jury that if they were not satisfied that Mr Padovan "was in that common purpose with the Comancheros", then there was the alternative count of affray to consider. The Crown alleges that the Comanchero accused, including Mr Kisacanin, were parties to that same common purpose. I understand this to mean that the common purpose alleged to have been shared by all of the Comanchero and Hells Angels members who were present at the airport was "to fight each other". 67The Crown Prosecutor submitted that s 93B did not require there to be a common purpose against a mutual enemy. Anderson predated the creation of the statutory offence and was only concerned with the now abolished common law offence. In a judgment I gave on 18 August 2011 ( R v Hawi & ors (No 18 )) on an application by the Crown to amend the indictment, I referred to the history of s 93B which was enacted in 1988, subsequent to the decision in Anderson . There I observed that the section corresponds with an almost identically worded statutory expression of the offence of riot enacted in the United Kingdom in 1986. On that occasion, Mr Gordon handed up a copy of an extract from Archbold: Criminal Pleading, Evidence & Practice , (2000), Sweet & Maxwell. The first page of the extract (p 2383) includes the following cautionary note after reference is made to the 1986 enactment and corresponding abolition of the common law offence: "In view of the wholesale abolition of the old law ... it is submitted, apart from one or two instances where words or expressions have plainly been taken from earlier legislation, there is no justification for referring to authorities on the old law: judges should direct their attention to the wording of the Act." 68Another point raised by Mr Gordon in written submissions was that the evidence must be capable of establishing that the accused "in fact used unlawful violence for the common purpose". That is to say, threatening unlawful violence was insufficient; there must be evidence of the use of such violence. The Crown has accepted the validity of this point and it was in this respect that it sought, and was granted, leave to amend the indictment. 69I am not persuaded that it is inappropriate for the Crown to particularise the common purpose as it has. It is an agreed fact that there was mutuality in the hostility between members of the two clubs. It is open to the jury to conclude that there was also mutuality in a desire to engage in fighting with each other. There is nothing in the terms of s 93B that requires that the common purpose be directed at "a mutual enemy". 70There is a case to go to the jury on the alternative count of riot.