Citation: R v Hawi & ors (No 17) [2011] NSWSC 1663
Court: Supreme Court of New South Wales
Date: 15 August 2011
Judge(s): Hulme J
Background
The trial concerned violent confrontations between members and associates of the Comanchero and Hells Angels motorcycle gangs at the Qantas domestic terminal at Sydney Airport on 22 March 2009. The Crown alleged that an affray occurred near Gate 5, followed minutes later by a riot in the departure hall that resulted in one person's death.
A key prosecution witness, referred to as AL, was a former nominee member of the Comanchero who had originally been charged with riot, affray, and murder. After agreeing to give evidence for the Crown, the murder charge was withdrawn and a reduced sentence was imposed upon his guilty plea to the remaining charges. AL gave evidence implicating one of the accused, Menzies, in the fatal assault.
Counsel for Menzies sought to use AL's prior criminal history, already elicited in cross-examination, not merely to attack AL's credibility but as tendency evidence: specifically, to establish that AL had a tendency to act violently and to possess and use weapons. The Crown objected to the evidence being used for that purpose.
Legal Issues
- Whether AL's prior convictions and other conduct satisfied the requirements of s 97 of the Evidence Act 1995 (NSW) to be admissible as tendency evidence.
- Specifically, whether that evidence had "significant probative value" in establishing a tendency to act violently and to possess and use weapons, in a way relevant to the facts in issue at trial.
- Whether the distinction between possession of a weapon and use of an item as a weapon was material to the tendency asserted.
Decision
Hulme J first clarified a preliminary point: there was no suggestion that AL possessed a weapon on the day in question. He had only picked up an item and used it as an improvised weapon. Accordingly, any tendency concerning possession of weapons was not relevant to the facts in issue, leaving only a potential tendency to use weapons.
The court turned to s 97 of the Evidence Act 1995, which prohibits tendency evidence unless the party adducing it has given reasonable notice and the court is satisfied that the evidence will have "significant probative value." Notice had been given, so the sole question was whether that probative value threshold was met.
On the first alleged tendency, to act violently, the evidence consisted of two incidents from several years earlier: an assault on AL's wife (which involved actual violence and threats) and a robbery of a drug dealer involving demands under menace. Hulme J found that these incidents were quite dissimilar in context to a mass brawl at an airport terminal, and that their capacity to demonstrate a tendency of relevance to the facts in issue was limited. On the second alleged tendency, to possess and use weapons, the most directly relevant item was a cut-down shotgun that a friend had stored in pieces at AL's home in 2000, which AL said he had not touched. Hulme J found that a single incident of this nature, nearly a decade earlier and involving passive storage rather than active use, could not rationally bear on whether AL used a bollard as a weapon in 2009. Considering both tendencies together added nothing to the probative force.
The court also noted, in passing, reservations about the Crown's concession that the prior offence evidence was relevant to AL's credibility, observing that isolated prior offences from years earlier have a tenuous bearing on truthfulness. Despite these reservations, Hulme J confirmed that the evidence would remain before the jury for credibility purposes only, with an appropriate direction to be settled with counsel.
Orders Made
• The case of the evidence as tendency evidence is rejected
• The court will hear counsel as to the terms of a direction to the jury that evidence of AL's previous offences are relevant only to his credibility and cannot be used as a basis for any tendency reasoning
Key Takeaways
- Under s 97 of the Evidence Act 1995, tendency evidence must clear a "significant probative value" threshold; evidence of prior violent conduct that is contextually dissimilar to the charged events may fail that test even where some violence is common to both.
- The court distinguished between the possession of weapons and the use of an item as a weapon, treating these as separate alleged tendencies requiring separate analysis.
- A single instance of passively allowing a disassembled firearm to be stored at one's home, occurring nearly a decade before the events in question, was found incapable of establishing a tendency to use weapons.
- Where evidence of prior convictions has been admitted for credibility purposes, s 95 of the Evidence Act 1995 operates to prevent that evidence being repurposed as tendency evidence unless the s 97 threshold is independently satisfied.
- Hulme J queried, without deciding, the extent to which isolated prior offences from years earlier genuinely bear on the credibility of a witness, noting that cross-examination confined to the bare fact of those offences does not readily support an inference of present untrustworthiness.
Legislation and Cases Referenced
Legislation:
- Evidence Act 1995 (NSW), ss 95, 97, 100
- Weapons Prohibition Act 1998 (NSW), Schedule 1, s 7
Cases:
- R v AH (1997) 42 NSWLR 702
- R v AW [2009] NSWCCA 1
- R v Fletcher [2005] NSWCCA 338; (2005) 156 A Crim R 308
- R v Fordham (1997) 98 A Crim R 359
- R v Lock (1997) 91 A Crim R 356
- R v Lockyer (1996) 89 A Crim R 457