... 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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Decision last updated: 14 February 2012