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Supreme Court 21 April 2011

R v Hawi & ors (No 1)

[2011] NSWSC 1647

Assault & violenceHomicide
CRIMINAL LAW EVIDENCE RELEVANCE WHETHER UNFAIRLY PREJUDICIAL

Citation: R v Hawi & ors (No 1) [2011] NSWSC 1647
Court: Supreme Court of New South Wales
Date: 21 April 2011
Judge: R A Hulme J

Background

Eight accused faced trial for murder and related offences arising from an incident at Sydney Airport on 22 March 2009. The Crown alleged that each accused was a party to a joint enterprise to inflict grievous bodily harm on members of the Hells Angels motorcycle club. Several of the accused held positions within the Comanchero motorcycle club, including National President, Road Captain, Secretary, and Sergeant at Arms.

The Crown conceded there was no direct evidence of any express agreement to assault members of the Hells Angels at the airport. Instead, it sought to invite the jury to infer such an agreement from three sources: the events at the airport itself, prior animosity between the two clubs, and the organisational structure and rules of the Comanchero.

Before trial, counsel for four of the accused (Hawi, Abounader, Costa, and Aouli) objected to the Crown leading what the parties termed "hierarchy evidence": evidence about the Comanchero's internal structure, leadership positions, membership rules, and the roles occupied by specific accused.

  • Whether evidence of the Comanchero's hierarchical structure, leadership positions, and club rules was relevant to the Crown's case.
  • Whether, even if relevant, that evidence should be excluded because the danger of unfair prejudice to the accused outweighed its probative value.
  • Whether specific categories of evidence within the broader hierarchy evidence, particularly references to criminal conduct by nominees and certain club rules, warranted separate exclusion.

Decision

Hulme J held that the hierarchy evidence was relevant. The Crown's theory was that the coordinated gathering of Comanchero members and their travel to the airport did not happen by coincidence. Evidence of the club's command structure, the rules requiring members to obey orders and protect the president, and the specific roles held by the accused each contributed to the inference that the group acted in concert pursuant to a prior agreement. The judge was satisfied that inferences of concerted action were reasonably open to the jury, even if not inevitable.

On unfair prejudice, the judge found that the general hierarchy evidence did not give rise to dangers that outweighed its probative value. Evidence that Mr Abounader held the Road Captain position, for example, was capable of explaining why communications with him triggered the group's movement to the airport. Evidence of Mr Costa's role as Secretary similarly carried limited prejudicial risk while still carrying some probative weight.

However, the judge drew a line at two categories of evidence. First, evidence that nominee members were required to participate in criminal acts was excluded, as the danger of unfair prejudice outweighed its probative value. Second, certain rules, particularly those about not speaking to police and removing phone batteries at meetings, raised similar concerns because they might be construed as evidence of participation in unrelated criminal activity. The judge indicated he would hear further submissions on those specific rules if the parties could not resolve the issue between themselves.

Orders Made

• Evidence set out in the written outline document is relevant
• Evidence about nominee members being required to participate in criminal acts is not permitted to be led
• Further submissions to be heard regarding specific rules construed as indicating participation in unrelated criminal activity (rules about not speaking to police and removing batteries from phones)
• Aside from the above matters, the evidence is admissible

Key Takeaways

  • Evidence of a motorcycle club's internal hierarchy and rules can be relevant in a joint enterprise murder trial where the Crown seeks to infer a prior agreement to act from the organisational structure and command obligations of the group.
  • The test for admissibility is whether the inferences the Crown seeks to draw are reasonably open, not whether the jury would necessarily draw them, consistent with the Court of Criminal Appeal's approach in R v SJRC [2007] NSWCCA 142.
  • Even within a single body of evidence, some components may be admissible while others are not. The Supreme Court severed the hierarchy evidence, admitting most of it but excluding specific material where prejudice outweighed probative value.
  • Evidence that nominee members were required to participate in criminal acts was excluded as unfairly prejudicial, notwithstanding the absence of a specific objection from the accused to that particular component.
  • Club rules that could imply participation in unrelated criminal activity, such as prohibitions on speaking to police, required further argument before the court would determine their admissibility.

Legislation and Cases Referenced

Legislation
- Criminal Procedure Act 1986 (NSW), s 143 (pre-trial disclosure notices)
- Evidence Act 1995 (NSW)

Cases
- R v Blick [2000] NSWCCA 61; (2000) 111 A Crim R 326
- R v SJRC [2007] NSWCCA 142