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[2011] NSWSC 1666
Supreme Court of NSW
2011-08-16
Hulme J, Whealy J, Spigelman CJ
Original judgment source is linked above.
The principles in relation to the correct approach to be taken by a trial court where such an application is made are not in doubt. They were recently stated in R v PL (2009) NSWCCA 256 by Spigelman CJ with whom the other members of the Court agreed. Those principles draw in turn upon the well known statements in Doney v R (1990) 171 CLR 207; (1990) 50 A Crim R 157 at 162 and other established authorities which I need not cite for the purposes of this judgment.
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.
Overview of the case 6The trial is concerned with two episodes of violent activity between members or 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 (count 3), and that further unlawful violence, constituting a riot, or alternatively an affray, occurred minutes later in the departure hall (counts 4 and 5). The latter culminated in the death of Mr Anthony Zervas but it is not alleged that Mr Padovan is criminally liable for that. 7It is the Crown case that the catalyst for these events was the chance encounter between five members of the Comanchero and the president of the Hells Angels, Mr Derek Wainohu, on a flight from Melbourne. There is evidence of telephone communications to fellow members of the respective groups in Sydney which brought about the attendance of a further seven Comanchero members and seven Hells Angels members, including Mr Padovan, at the airport.
Some general matters concerning the Crown case 8The Crown relies upon an agreed fact that there was ongoing hostility between the Comancheros and the Hells Angels and that the accused was aware of this. 9There is evidence that Mr Derek Wainohu, the then president of the Hells Angels, was on Qantas flight 430 from Melbourne to Sydney on Sunday 22 March 2009. By chance, so too were five Comanchero members: Mahmoud Hawi, Christian Menzies, Ishmail Eken, Pomare Pirini and Maher Aouli. There is evidence of some animosity being exhibited by at least Mr Hawi towards Mr Wainohu. There is also evidence of telephone communications made by Comanchero members, and by Mr Wainohu, to members of their respective clubs in Sydney. 10As I indicated earlier, seven Comancheros attended the airport: Fares Abounader, Usama Potrus, Zoran Kisacanin, Tiago Costa and Francesco LaRosa, as well as two men who have become prosecution witnesses, SP and AL. The seven Hells Angels members and associates who attended the airport were Peter Zervas, Anthony Zervas, Elias Khoury, Peter Martin, Tom Baker, Musa Ovalle and Mr Padovan. 11Security camera footage that is before the jury depicts these men entering and walking about the terminal. The Comancheros aside from Messrs Abounader and Potrus, proceeded through security screening and went to Gate 5 where QF 430 was due to arrive. Most of the Hells Angels waited out in the departure hall but Messrs Padovan and Baker went through to Gate 5. It was shortly after those who were on the plane had disembarked that the events that are in issue occurred in the vicinity of the gate.
Affray at Gate 5 12To establish the charge of affray, the Crown must establish that Mr Padovan either used or threatened unlawful violence towards another person. It must also establish that such conduct would cause a person of reasonable firmness present at the scene to fear for his or her personal safety. 13No question was raised as to the sufficiency of the evidence to establish the latter point. There is an abundance of it. The critical issue is whether the Crown case is capable of establishing that Mr Padovan used, or threatened to use, unlawful violence. 14It is unnecessary to go into great detail in relation to all that occurred at 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. 15It is not controversial that the attention of the Comancheros, or some of them, was then focused 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 on the ground being kicked and punched (for example, T241; T275; T385). 16The pursuit and assault of Mr Padovan is the major, but not the only, component of the evidence at Gate 5 upon which the Crown relies in contending that the offence of affray occurred. The Crown relies upon evidence of events which occurred from the initial confrontation involving Messrs Wainohu and Hawi through until the physical violence had ceased and a man (there is evidence suggesting it was Mr Hawi) called out something like, "you're a dead man, you're fucking dead, you've got bullet holes in you" (T580.43). (See similar witness descriptions of the threat at T386 and T833). 17The Crown accepts that self-defence is an issue in respect of Mr Padovan in relation to the events at Gate 5. It contends that, in contrast to Messrs Wainohu and Baker who did not respond and join in the fighting, Mr Padovan exercised the choice to do so. On the other hand, Mr Conwell submitted that "at Gate 5 [Mr Padovan] was given a hiding by a large number of men. His only options there were to run away and get away which is exactly the option that he took" (T3727.37). Written submissions by Mr Conwell included excerpts from the evidence of quite a number of witnesses which support the proposition. However, as will shortly be seen, there is also evidence which supports the Crown's proposition. 18Mr Conwell has submitted that "words alone" are incapable of establishing a threat of unlawful violence. The Crown accepts that. So much is succinctly stated in s 93C(3) of the Crimes Act . The Crown, however, relies upon more than words uttered by Mr Padovan. It relies upon his actions which were submitted to have included "fist waving, running and to some extent fighting" (T3714.30). In this respect the Crown relies upon the observations of some of the eyewitnesses. 19One witness (McKay) observed a man, who on the evidence must have been Mr Padovan, on the ground and being assaulted. She said, "He sprang to his feet ... and he was then quite provocative and aggressive in his actions and his speech" . The man said "fuck" repeatedly and "his gestures were ... very provocative" (T445). In cross-examination by Mr Conwell, she agreed that he was taunting his assailants who at that point were about five metres away from him (T450). It was clearly the case that this witness gave evidence of Mr Padovan being assaulted and Mr Conwell referred me to this. But I have to look at the Crown case at its highest and so it is significant that she also gave evidence of the above matters. 20Another witness (Dunn) described a person, who it is open to the jury to conclude was Mr Padovan, "generally approaching the vicinity of ... two men with an open stance and perhaps aggressively" (T555.31). A little later he described this man "approaching the area where fighting was occurring, and I think he did have clenched fists. It seemed to me that he was, well, just approaching into an area of a fight. That is what I meant by aggressive" (T556.21). 21In cross-examination by Mr Dunn QC, on behalf of the accused Hawi, the witness adopted the description of this man "coming in a fighting stance or fighting position towards that incident" (T557.35). Mr Conwell played the security camera footage which demonstrated, he submitted, that the witness' evidence could not be correct, or could not be interpreted as indicating aggression displayed by Mr Padovan towards any of the Comancheros. That is an available submission, but the footage is not so clear that the jury could not accept the witness' evidence. 22That witness' wife gave evidence that she saw two men fighting, punching each other (T424.50). Her descriptions of them were such that it would be open to the jury to conclude that the shorter of these two men was Mr Padovan. 23The Crown Prosecutor referred to the evidence of a Qantas employee (Searle) who saw what was, on the Crown case, Mr Hawi punching Mr Wainohu to the ground. The witness said that "after this happened a fight erupted between the two groups" (T436.7). Reference was made to evidence that after Messrs Wainohu and Baker were punched to the ground at the beginning of the fight they played no further role. Thus, it was contended that the " fight ... between the two groups " could be interpreted as fighting between the Comancheros and Mr Padovan. 24Another eyewitness (Auton) said that he saw a man without a shirt (Mr Padovan) "shaking his fist at someone" and shouting (T672). In cross-examination by Mr Dunn, he agreed that he had told the police that he could not tell whether this man was being pursued or was pursuing; that he appeared to be very angry; and that he was shouting and gave the witness the impression he was swearing (T673). 25A passenger from the flight (Youssef) went to the bathroom as soon as he entered the terminal building. When he emerged he saw a group of about 10 men, 4 of whom were fighting. By that he meant "punching, kicking and swearing back and forth" (T634.40). In cross-examination, however, he agreed that there were "about five or six guys on the one guy and they were throwing kicks and punches ... Two guys tried to hold him but he broke free ... by the jumper being taken off him" (T646). 26Mr Conwell made other submissions relating to the evidence to which I have just referred. I have not referred specifically to them because it is sufficient to say that they served to highlight that there are competing inferences available, or that they are simply arguments as to why the Crown's interpretation of the evidence should not be accepted. These, however, are matters for the jury to consider. 27The Crown Prosecutor acknowledged the potential self-defence issue but argued that, on the evidence taken at its highest, it could not be said that the jury would be compelled to find in favour of Mr Padovan. 28There is no direct evidence presently before the jury as to the accused's beliefs and perceptions on issues concerned with self-defence. That, however, is not essential: Colosimo v Director of Public Prosecutions (NSW) [2006] NSWCA 293 at [19] per Hodgson JA. His Honour added, however, that:
... in the absence of other evidence suggesting the contrary, inferences have to be drawn on the basis of what beliefs and perceptions a person in the position of the accused could reasonably hold in the circumstances. 29Having regard to the principles to which I have earlier referred, as well as to the terms of s 418 of the Crimes Act 1900, it seems to me that what I must now consider is whether, on the evidence presently available, the jury cannot do otherwise than to find both that Mr Padovan believed that what he did was necessary in order to defend himself, and that his conduct was a reasonable response in the circumstances as he perceived them. Having regard to all of the evidence to which I was referred by the Crown Prosecutor, but most particularly to that of the witness who described a man (who on the evidence it is open to the jury to conclude was Mr Padovan) approaching two men, with clenched fists, in a fighting stance, I do not believe that conclusion is available. 30I am satisfied that there is a case to answer in respect of the count of affray.
Riot, or affray, in the departure hall 31In relation to the events in the departure hall concerning Mr Padovan, the Crown particularly relies upon three aspects of the evidence: Mr Padovan running towards the fighting; his blood found in an area where the fighting occurred; and an eyewitness who identified him as being involved in the fighting. 32First, as to Mr Padovan running towards the fighting. There is security camera footage that shows that Mr Padovan emerged from the bi-fold doors, out of the secure area, and into the departure hall at a time when, on the Crown case, the fighting between the Comancheros and the Hells Angels further into the departure hall was still behind the check-in counters. (The fighting soon moved between the counters towards the front of the terminal building). Mr Padovan can be seen to immediately run in a straight line along the back of the counters in the direction of where the fighting had erupted. This, the Crown contends, establishes a willingness and an intention to involve himself in the melee. 33There is evidence that the witness AL pursued a Hells Angels member, Peter Martin, away from where the fighting had started, in a direction back towards the bi-fold doors. That is, back in the direction from which Mr Padovan was about to appear. Mr Conwell submitted that Mr Padovan was running towards an altercation between those two men in order to defend Mr Martin. Mr Conwell referred to certain security camera footage in support of this proposition. 34On the evidence presently available, that is a matter of speculation, or an inference that is not the only available inference. Simply because there was fighting between AL and Peter Martin in the direction in which Mr Padovan ran, it does not follow that it was to those two men that Mr Padovan was intending to go. There is no evidence from Mr Martin, because he has not been called, and there is no support for the proposition from AL. Further, AL denied that he fought with Mr Martin. He said that he chased after him after Mr Martin had punched him, but could not catch him. He denied seeing Hells Angels running towards him as he chased Mr Martin (T2506.39). The inference that he was running towards the general fighting that was occurring further away, but in the same direction, is equally available. 35Mr Conwell submitted that "David Padovan delayed his exit from the sterile area by one minute", citing the times on security camera footage in support of this proposition (T3720.20; T3738.35). The Crown Prosecutor submitted that the time difference between the Comancheros and Mr Padovan emerging from the bi-fold doors was more in the order of about 45 seconds, and that the gap had reduced to about 33 seconds at the point at which the Comancheros and Mr Padovan had passed the back of check-in counters 24 and 25 (T3726-7). 36Whatever the precise timing may be, the fact remains that once he emerged from the bi-fold doors, Mr Padovan immediately ran in the direction of where the fighting had commenced. 37As to the first part of Mr Conwell's proposition, that Mr Padovan "delayed his exit", there is no evidence that this was a deliberate choice made by Mr Padovan. On the evidence presently before the jury, all that can be said is that the Comancheros who had been at Gate 5 came through the bi-fold doors before the Hells Angels. The Comancheros had immediately walked towards the exit as soon as the fighting at Gate 5 had ceased. The Hells Angels took some time to regroup before they commenced to exit the secure area of the terminal. 38The second aspect relied upon by the Crown was blood found in front of counter 14, in an area fairly central to where the fighting occurred once it had moved through to the front of the check-in counters. Various items identified in the crime scene investigation as having relevance to the incident were found in that general area (for instance, knuckledusters and fallen bollards). Through DNA analysis, this blood was found to be consistent with having come from Mr Padovan. It was the Crown's contention that, on this evidence, the jury could reject the proposition that Mr Padovan went only in aid of Mr Martin in an area behind the check-in counters since evidence of his blood was found in an area in front of the check-in counters where the fighting between the two groups had continued. 39Mr Conwell submitted that Mr Padovan must have come through that area at some stage; there was really no dispute about it. However, he also submitted that this did not mean that Mr Padovan was in that location at the time that fighting was occurring. The submission amounts to an assertion that there exists an alternative explanation for an item of circumstantial evidence. It does not mean that the inference for which the Crown contends, when viewed in the light of all of the evidence and not just in isolation, is not available. 40The third matter to which the Crown referred was the evidence of a witness who had been a passenger on the flight from Melbourne (Curtain). It is unnecessary to describe the detail of this evidence. In short, it was that a man he described (consistent with being Mr Padovan) was seen to be involved in the fighting at the front of the terminal. He said that this man was both kicking and punching (T3108). 41There are a number of reasons why the jury could conclude that this evidence is unreliable. Mr Conwell referred to them in the course of his submissions. However, for me to reject the possibility of the jury having regard to the witness' evidence because of those matters would be to usurp the jury's function. In accordance with the principles I outlined earlier, that is not a course I am able to take. 42There were some other matters referred to by the Crown Prosecutor in her submissions. She asserted that Mr Padovan running from the bi-fold doors towards the area of the fighting was consistent with him acting on feelings of revenge. It may be that the jury could consider that Mr Padovan had come off second best in the incident at Gate 5 and was likely to be angry as a result. 43Then there was the contention that Mr Padovan's departure from the terminal evinced a consciousness of guilt. I accept that an argument is available for the jury to consider on this topic. The jury could well consider it a telling point that immediately leaving the terminal, and the airport generally, was inconsistent with a man who had been purely a victim of an assault at Gate 5 and had played no part in the subsequent fighting in the departure hall. This is particularly so when it is considered that Anthony Zervas, the brother of one of his Hells Angels companions, Peter Zervas, was lying unconscious on the ground receiving urgent medical attention. Peter Zervas was hovering about in a most agitated and distressed state. Mr Padovan did nothing to assist Anthony Zervas and did not stay to support and console Peter Zervas. He simply walked out. 44Mr Conwell submitted that on the evidence presently before the jury, the proposition that Mr Padovan was acting in self-defence could not be negatived. It is, as I understand the position, not the defence case that Mr Padovan did anything in defence of himself or another person in the departure hall. Notwithstanding this, the proposition was maintained in the event that the jury accepted the Crown's contention that Mr Padovan was involved in using violence. If that was the case, it was submitted that it could not be proved beyond reasonable doubt that he used unlawful violence because the evidence was incapable of satisfying the jury that Mr Padovan did not believe that it was necessary to do what he did in defence of another person and was also incapable of satisfying a jury that his conduct was not a reasonable response in the circumstances as he perceived them. Reference was made to the cross-examination of the witness Curtain in which he agreed that he could not say whether the man without the shirt was an aggressor or defending himself (T3112.19). For present purposes, however, that evidence is neutral. 45I cannot accept Mr Conwell's submission on the issue of self-defence. Evidence that Mr Padovan ran towards the fighting, and that he was seen to be fighting, could be regarded by the jury as disproving beyond reasonable doubt either, or indeed both, of the two limbs in s 418 of the Crimes Act . 46My conclusion is that there is a case to answer in respect of the charge of riot, and the alternative charge of affray.
Conclusion 47It was for the foregoing reasons that I refused the application to direct the jury to return verdicts of not guilty.
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