R v Hawi & ors (No 3) [2011] NSWSC 1649 (11 May 2011)

Last Updated: 13 February 2012

Supreme Court New South Wales

Case Title:	R v Hawi & ors (No 3)
Medium Neutral Citation:	[2011] NSWSC 1649
Hearing Date(s):	9 May 2011
Decision Date:	11 May 2011
Jurisdiction:	Common Law - Criminal
Before:	R A Hulme J
Decision:	Application for separate trial refused
Catchwords:	CRIMINAL LAW - procedure - information, indictment or presentment - joinder - joint or separate trial - whether prejudice caused by case for co-accused will cause positive injustice
Legislation Cited:	Criminal Procedure Act 1986
Cases Cited:	Annakin v The Queen (1988) 17 NSWLR 202 R v Baartman, New South Wales Court of Criminal Appeal, 6 October 1994, unreported R v Beavan (1952) 69 WN (NSW) 140 R v Middis, New South Wales Supreme Court, 27 March 1991, unreported R v Merritt and Roso (1985) 19 A Crim R 360 Symss v The Queen [2003] NSWCCA 77 Webb and Hay v The Queen [1994] HCA 30; (1994) 181 CLR 41
Texts Cited:
Category:	Procedural and other rulings
Parties:	Regina David Padovan
Representation
- Counsel:	Counsel: Ms N Adams with Ms H Roberts (Crown) Mr A Conwell (Padovan)
- Solicitors:	Solicitors: Solicitor for Public Prosecutions (Crown) Nyman Gibson Stewart (Padovan)
File number(s):	2009/59368
Publication Restriction:

JUDGMENT

1. HIS HONOUR: The accused, David Padovan, is due to stand trial with a number of other men for offences that are alleged to have arisen from two incidents which occurred at the Qantas Domestic Terminal at Sydney Kingsford Smith Airport on Sunday 22 March 2009. The various accused are charged with offences of murder, riot and affray. Mr Padovan is charged with affray in respect of the first incident and riot, alternatively affray, in respect of the second incident. It has been estimated by counsel for the Crown and most of the accuseds' counsel that the trial will take some 6 months.

2. By notice of motion filed on 31 March 2011, Mr Padovan sought a trial separate from eight named co-accused. The name of a ninth co-accused was inadvertently omitted. A number of co-accused have since entered pleas of guilty. Mr Padovan now seeks a trial separate from that of the remaining six co-accused. Central to the application is the fact that Mr Padovan was a member of the Hells Angels motorcycle club whereas the co-accused were all members, or associates (hereafter simply "members") of the Comanchero motorcycle club.

3. The motion was returnable before me on 8 April 2011. The hearing was deferred, ultimately until 9 May 2011, in order to permit the resolution of other issues which may have possibly had a bearing upon the application. Mr Padovan relies upon an affidavit of his solicitor, Mr Philip Stewart, of 31 March 2011. Written submissions were provided by the Crown Prosecutor and Mr Conwell, counsel for Mr Padovan. Those submissions were supplemented with oral submissions on Monday of this week.

Prosecution case

4. Briefly, it is the prosecution case that there was animosity between the Hells Angels and Comanchero motorcycle clubs. This is relevant to explaining events which occurred at the airport on 22 March 2009 when there was confrontation between members of the rival clubs in two incidents which occurred a short time apart.

5. Five Comanchero members, including the National President, were on a flight from Melbourne. By chance, so too was the President of the Hells Angels. When they became aware of this fact, contact was made by telephone with members of their respective clubs in Sydney in order for them to attend the airport. It is the prosecution case that those on the flight, and those who were summoned to the airport, contemplated (at least) the possibility of violence.

6. The first incident involved a fight at Gate 5 following the disembarkation of passengers from the flight from Melbourne. Five of the seven accused, including Mr Padovan, are charged with affray in respect of this event. It was relatively short-lived and it seems to be the case that the Comancheros outnumbered the Hells Angels.

7. The second incident involved a considerably more violent fight involving a greater number of members of the rival groups in the main departure hall of the terminal. It culminated in the death of one of the Hells Angels, Mr Anthony Zervas. The six Comanchero accused are charged with murder, alternatively, riot. Mr Padovan is charged only with riot and, in the alternative, affray.

8. Mr Zervas died as a result of wounds inflicted with a knife and a pair of scissors and blunt force injuries likely caused by having been struck with bollards. The latter were items used for queue control at the check-in counters that were taken up by some of those involved in the fighting in order to be used as weapons. Investigators recovered knuckle dusters and a knife from the crime scene. A broken pair of scissors was found embedded in the deceased's clothing. Another knife was recovered by police some months later in a drain outside the terminal as a result of information they received that one of the accused had disposed of it there upon fleeing the scene. The Crown alleges that it was this knife that was used in the attack upon the deceased.

9. As to the initial affray, it is alleged that Mr Padovan was directly involved in the altercation, although it is accepted by the Crown that he was outnumbered by members of the Comanchero. The Crown relies upon evidence which establishes the following:

• Mr Padovan was a member of the Hells Angels.
• He (and other Hells Angels members) came to the airport as a result of calls made by their president who was on the flight from Melbourne.
• Upon arrival at the airport he proceeded through security screening and went to Gate 5 where the Melbourne flight was due.
• With another Hells Angels member, he met up with their president when he, the president, disembarked from the flight.
• The affray started with a larger number of Comancheros and a smaller number of Hells Angels. There was a short verbal altercation before fighting commenced. Mr Padovan was the only Hells Angel involved in the fighting and he was outnumbered by the Comancheros. He lost his shirt during the course of it.
• At one point, Mr Padovan ran towards one of the Comanchero members with his arms swinging, yelling out, "come on" . He repeated these actions a number of times.

10. As to the subsequent riot, the Crown relies upon evidence that establishes the following:

• After the affray had concluded, Mr Padovan walked with two other Hells Angels members through the security doors towards the departure hall area.
• The brawl in the departure hall commenced and Mr Padovan ran towards it.
• He was present in the area where the brawl took place.
• He was present in the area at the end of the brawl.

11. The foregoing has been derived from the summary of the evidence in the Crown Case Statement (as amended 6 May 2011).

12. The case for Mr Padovan has been the subject of pre-trial disclosure pursuant to the case management provisions of the Criminal Procedure Act 1986. I will say more about it shortly.

Submissions for Mr Padovan

13. Mr Conwell perceives that the prosecution case is that Mr Padovan and other Hells Angels members attended the airport with an awareness of the potential for violence and that some of them participated in the violence that in fact occurred. It is put that the prosecution case is that some Comanchero members were armed but that none of the Hells Angels were armed. I have previously noted the evidence that Mr Zervas was attacked with weapons including a pair of scissors and a knife (later found within his clothing and in a drain respectively), and that another knife and some knuckle dusters were found at the crime scene.

14. Mr Conwell perceives that it is the case for the Comancheros that the Hells Angels were armed with at least one knife, at least one set of knuckle dusters and a pair of scissors and that they used these weapons to confront the Comancheros. This perception is derived from questions asked of a witness at the committal hearing by counsel for the Comanchero, with answers given that tended to support the proposition.

15. The witness I have just referred to is a Comanchero member who has pleaded guilty and been sentenced and has given an undertaking to give evidence for the prosecution. Up until now he has been referred to by the initials "SP". He agreed in cross-examination at the committal that the deceased attacked one of the Comanchero members with a pair of scissors and also that it was possible that the deceased was armed with a knife as well. He agreed that he "believed" that the deceased's brother, Mr Peter Zervas, was armed with knuckle dusters.

16. From the pre-trial disclosure response, and Mr Conwell's written submissions, it emerges that Mr Padovan's case is that he was not at the airport for the purpose of engaging in unlawful violence; no weapons were taken to the airport by any of the Hells Angels; and that no scissors, knives or knuckle dusters were used by any of the Hells Angels. (How Mr Padovan would know that none of his fellow Hells Angels were armed, and how he would know that, in the course of what seems to have been a wild melee, none of them used any weapons, is not apparent). Mr Padovan intends to put in issue self defence in relation to any involvement by him in the two incidents.

17. As a result of the prosecution case being that the Hells Angels were not armed, and the Comancheros' case being that they were armed, it was submitted that Mr Padovan will be required to not only defend himself against the Crown case but also against the Comancheros' case. It was submitted that this did not amount to a "typical cut throat defence". Accordingly, it was submitted that Mr Padovan would be the subject of "positive injustice ... that would be impossible to overcome".

18. Mr Conwell acknowledged that if there was a "cut throat defence", there would be a desirability of avoiding inconsistent verdicts and this would militate against ordering separate trials: R v Beavan (1952) 69 WN (NSW) 140; Annakin v The Queen (1988) 17 NSWLR 202; Webb and Hay v The Queen [1994] HCA 30; (1994) 181 CLR 41. However, he submitted that this was not a consideration as the defence was not of such a nature.

19. Mr Conwell accepted that separate trials would result in a number of witnesses being required to give their evidence twice. However, a mollifying consideration, so it was submitted, was that "given the nature of the two different prosecutions, the witnesses required will be significantly streamlined". Certain categories of witness evidence were suggested and, it would seem that if the Crown were in agreement, there is a potential for quite a significant reduction.

20. It was also submitted that there was the possibility that a separate trial of Mr Padovan could take place in the District Court or, "with charge negotiation" in the Local Court. The latter seems rather unlikely and I do not see the former as having much, if any, significance. A defended hearing of the matter would likely consume a similar degree of resources no matter what the jurisdiction.

21. There is an implicit acknowledgement at page 3 of Mr Conwell's written submissions that the assertion made on page 1 that the prosecution case was that "the Hells Angels were unarmed when they arrived at the Qantas Domestic Terminal" was not quite accurate. On page 3 it is said that the prosecution submissions at the committal hearing " did not suggest that any Hells Angels came to the airport armed" (emphasis added). It is said, similarly, that the Crown Case Statement " does not suggest that any Hells Angels were armed prior to attending the airport other than the deceased possibly being armed with a pair of scissors" (emphasis added). Even if the deceased was so armed, I note the assertion on page 1 of the written submissions that such scissors came from a check-in counter and were not brought to the airport.

22. Mr Conwell also referred (at page 4 of his written submissions) to the statement of facts that was tendered by the prosecution in the proceedings on sentence concerning the deceased's brother in the Local Court for his involvement in the incident. Again, it is said, "there is no suggestion that any Hells Angels came to the airport armed" (emphasis added). Similarly, reference is made to the statement of agreed facts in the sentence proceedings of Pomare Pirini whom I sentenced on 18 March 2011. Again, there was no " suggestion by the Crown that any Hells Angels members went to the airport armed. The Crown case is that the Comancheros brought weapons to the Qantas Domestic Terminal" (emphasis added).

23. The positive injustice that it is submitted that Mr Padovan will suffer if he is to stand trial along with the Comanchero accused is that if the jury were to accept the Comanchero assertion, which is not the prosecution's assertion, that the Hells Angels were armed when they attended the airport, it will more readily accept that the purpose of their attendance at the airport was to engage in violence which, Mr Padovan, as a Hells Angels member, denies. Accordingly, "the weaker [and different] joint criminal enterprise Crown case is strengthened": see the first and third of the three matters listed by Hunt J (as he then was) in R v Middis , New South Wales Supreme Court, 27 March 1991, unreported, which were approved in R v Baartman , New South Wales Court of Criminal Appeal, 6 October 1994, unreported, as matters relevant to a consideration of a separate trial application. On the second of those three matters it was submitted that although the evidence which it is anticipated will be led in the defence of the Comancheros will be admissible against Mr Padovan, it will be "highly prejudicial" to him for the same reasons.

24. It was submitted that there would be difficulties in summing up both the prosecution case and the case for the Comanchero accused in a manner that would avoid "a positive injustice" to Mr Padovan and that the jury may convict Mr Padovan because of assertions that do not form any part of the prosecution case.

25. Mr Conwell sought to characterise the defence as not being in the nature of a "cut throat" defence in this way. It was submitted that the prosecution case is that some of the Comancheros are guilty of murder; that the Comancheros started "the disturbance"; that some of the Comancheros brought weapons to the airport; and that some of the Comancheros used such weapons. On the other hand, the prosecution does not allege that Mr Padovan is guilty of murder; that he started "the disturbance"; that he or any other Hells Angel brought weapons to the airport; or that he or any other Hells Angel used scissors, knives or knuckle dusters. The differences in the two cases mean that a concern about inconsistent verdicts does not arise.

26. A "cut throat" defence was characterised as one in which the prosecution alleged that "both A and B are guilty of the crime charged" and that the defence cases are that the crime was committed but that A blames B whilst B blames A. Mr Conwell submitted that this is not the situation in this case.

27. In oral submissions Mr Conwell put that even if the Crown case allowed for the possibility that Hells Angels members were armed, that is quite a different proposition to Mr Padovan having to face the Comancheros' case that will positively assert that they were. As an example of this being asserted against the Hells Angels by the Comancheros, Mr Conwell referred to the possibility that tendency evidence concerning the deceased may be led on behalf of the accused Hawi. Mr Dunn, senior counsel for Mr Hawi, confirmed that he was contemplating leading evidence that about a week before the airport incident, the deceased had stabbed a police officer. I take it that this will be said to give weight to a claim that at an early stage of the incident in the departure hall, the deceased sought to stab Mr Hawi with a pair of scissors.

Crown submissions

28. The Crown Prosecutor sought to make clear what the Crown case was in respect of weapons as this aspect appears to be at the core of the application. The weapons known to be present, and which must have been brought to the airport, comprised two knives and a set of knuckle dusters. There is also evidence of the involvement of a pair of scissors but it is unclear whether they were brought to the airport or were picked up from one of the check-in counters.

29. It is not part of the Crown case that any particular participant brought weapons to the airport with the possible exception of Mr Abounader. The Crown allows for the possibility that one or more Hells Angels may have brought weapons. There is also the possibility that one or more Comancheros brought them. A third possibility is that a member, or members, of both groups brought weapons. It is not possible to prove any of these three scenarios beyond reasonable doubt, nor is it necessary for the Crown to do so. The only thing that can be said with any certainty is that there is evidence from which the jury could conclude that the deceased was armed with a pair of scissors and possibly knuckle dusters and that Mr Abounader was armed with a knife. However, whether they were so armed when they attended the airport, as opposed to them acquiring them at the airport, cannot be established with certainty.

30. As to the contention that the deceased was armed with scissors, the Crown Prosecutor submitted that the evidence would be that Mr Padovan arrived at the airport and proceeded through security screening to Gate 5, whereas the deceased arrived separately and remained in the unsecure part of the terminal. Thus, the deceased and Mr Padovan did not come together at all before the riot started and so it was highly unlikely that Mr Padovan would have been aware that Mr Zervas was armed.

31. The Crown claims to have a viable case that the Hells Angels members came to the airport with a realisation that there might be a violent confrontation, regardless of whether they were armed. This is so, whether their intention was to defend themselves and fellow Hells Angels if necessary, or it was to assault the Comancheros.

32. The Crown Prosecutor acknowledged that a question of joint or separate trials is discretionary and involves a consideration of both the interests of justice and the interests of the accused: R v Merritt and Roso (1985) 19 A Crim R 360 at 364.

33. Generally speaking, however, where multiple accused are jointly charged with committing the same crime they should be tried together: Symss v The Queen [2003] NSWCCA 77 at [66] - [77], particularly:

[76] For present purposes I regard it as sufficient to emphasise the factors identified by King CJ in Collie and Webb and Hay and adopted by Toohey J in Webb and Hay in the High Court. There are important reasons of principle and policy why persons charged with committing an offence jointly ought to be tried together, particularly where each seeks to cast the blame on the other. The dangers from the admission of evidence which would not have been admitted if the appellant had stood trial alone can be obviated by express and careful directions as were given in this trial.

34. In this case, the Comancheros contend that the Hells Angels were the aggressors, particularly in relation to the second incident. The Hells Angels, on the other hand, contend that the Comancheros were the aggressors. Each group will contend that it was members of the other group who were armed. In the light of this, the Crown contends that there is a "cut throat" defence.

35. The Crown accepts that the Comancheros were the aggressors. However, it also contends that the Hells Angels were willing to fight and chose to remain and do so. Specifically in relation to Mr Padovan, the Crown proposes to negate his claim of self defence by pointing to evidence that he chose to engage in fighting at Gate 5 in contrast to his fellow Hells Angels members who did not. In relation to the riot, the fighting had already commenced and Mr Padovan ran towards it. Accordingly, the Crown contends that Mr Padovan cannot have had a belief that it was necessary to do what he did in defence of either himself or anyone else. Even if there is a reasonable possibility that he did, his response was not reasonable in the circumstances as he perceived them.

36. As to the assertion that Mr Padovan will be required to defend himself against the Crown case as well as the case for the Comanchero accused, the Crown submits that this moves from the inaccurate premise that the Crown case is that none of the Hells Angels were armed. From what has been said earlier, it is clearly not the case that the Crown accepts that the Hells Angels were unarmed. It acknowledges that they may have been but cannot prove that they were.

37. The Crown also contends that the case against Mr Padovan is not weaker than the case against the Comanchero accused and it is not one that will be unfairly strengthened by Mr Padovan being tried jointly with them. It was submitted that the evidence concerning the affray at Gate 5 and the riot within the terminal is virtually the same for all of the accused. The Crown alleges that the Comancheros were the aggressors and so, it is submitted, that might result in a finding that their criminality was greater. However, that fact does not mean that the case against the Hells Angels is "weaker".

38. Another aspect relevant to the interests of justice is the fact that the Crown presently proposes to call some 140 eyewitnesses in respect of the two incidents. That body of witness evidence is said to be relevant to all of the accused who are charged in respect of the two incidents, whether they be Comancheros or Hells Angels. Some witnesses will have to travel from overseas. It may well be possible to reduce the witness list by eliminating those whose evidence specifically concerns only the actions of participants outside the presence of Mr Padovan, but the reduction would not be substantial. It will still be necessary to call a large number of witnesses, some having to travel considerable distance, twice if Mr Padovan is to be tried separately. This is a factor militating against separate trials.

39. So, in summary, the Crown submits that the evidence against Mr Padovan is not significantly weaker and different to the evidence against the Comanchero accused. The eyewitness and crime scene evidence is the same. It is submitted that the evidence against the Comanchero accused is not prejudicial to the Hells Angels accused. The contention that there will be unfairness in that the Comanchero will allege that the Hells Angels were the aggressors is balanced by the fact that the Hells Angels will allege the contrary. The contention that the Comanchero will allege that the Hells Angels were armed will be similarly balanced. Finally, the Crown submits that this is not a case in which a weaker case will be made immeasurably stronger by the jury hearing evidence admissible only against the Comanchero accused that is prejudicial to Mr Padovan.

Consideration

40. There are many authorities dealing with the issue presently under consideration. I have found the review by Sheller JA in Symss v The Queen , above, at [68] to [76] particularly helpful.

41. The application for a separate trial is put on a very discrete basis. It is not suggested that there is evidence in the Crown case that will be admitted against other accused but not Mr Padovan that will be prejudicial to him. The application is confined to the manner in which the case for the co-accused is expected to be conducted.

42. As I currently perceive it, there will be no issue that Mr Padovan and most, if not all, of the Comanchero accused were involved in some fashion in the fighting that occurred. Who were the aggressors and the extent, if any, to which anybody acted in defence of themselves or of others will be significant issues.

43. I do not accept that the case against Mr Padovan is necessarily weaker than the case against the Comanchero accused in respect of the offences with which Mr Padovan has been charged. There is an added dimension to the case against the Comanchero accused in that they are also charged with murder but that is of little present significance.

44. Mr Conwell's perception that the Crown case is that the Hells Angels were unarmed is incorrect. The Crown is neutral on the subject aside from it accepting that it is a reasonable possibility that the deceased had a pair of scissors. However, the Crown does not allege that Mr Padovan himself was armed, or that he was aware that any other Hells Angels were armed. In addition, there is no suggestion, at least at this stage, that there will be any such allegation made on behalf of the Comanchero accused concerning Mr Padovan.

45. It is a necessary component of a joint trial that the jury be directed that separate consideration must be given to the case against each individual accused. That will be particularly important in this case because the accused will not only be identified as individuals but also as members of one or the other motorcycle club. It will, of course, be essential that the jury consider the case of an individual accused upon the basis of his own thoughts and actions, albeit within an appropriate context.

46. The concern about prejudice and positive injustice was expressed in terms of the jury accepting that " the Hells Angels were armed prior to attending the airport" and reasoning from this that it would be more readily concluded that "the purpose of the Hells Angels attendance at the airport was to engage in violence" (emphasis added). The jury will be directed that they must not adopt such global reasoning.

47. Accordingly, I do not see any real basis for the asserted concern that the prosecution case against Mr Padovan will be strengthened by the manner in which the Comanchero case is conducted. Even if that was to be so, I do not see any real basis for concluding that this would be unfairly prejudicial to Mr Padovan and result in a positive injustice.

48. Where accused persons are charged with committing a crime jointly, the prima facie position is that they should be tried together: Webb and Hay v The Queen , above, at 88-89 per Toohey J, Mason CJ and McHugh J agreeing. This is said to be "particularly so where each seeks to cast the blame on the other". The present is not a typical "cut throat defence" case. That is usually where two (or more) persons are charged with committing a crime against someone else and each accused seeks exculpation by blaming the other accused. Here, the prosecution alleges that the accused were involved in attacks by one group against the other. The fact remains, however, that Mr Padovan will be blaming the Comanchero accused and they, or at least some of them, will be blaming Mr Padovan and his fellow Hells Angels.

49. A joint trial is not justified in all cases where one accused blames a co-accused, or multiple accused all blame each other. The principles discussed by Sheller JA remain to be considered whatever the nature of the defence. In this case, however, I am satisfied that it would not be unjust for Mr Padovan to be tried with the other accused. The interests of justice in having the one jury decide the case concerning each and every accused in the one trial is a powerful consideration. Less persuasive, but not insignificant, are the considerations of cost and convenience.

Conclusion

50. The application by Mr David Padovan for a trial separate is refused.

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