Citation: R v Hawi & ors (No 20) [2011] NSWSC 1666
Court: Supreme Court of NSW
Date: 22 August 2011
Judge: R A Hulme J
Background
This decision arose from a high-profile criminal trial concerning two episodes of violent confrontation between members and associates of the Comanchero and Hells Angels motorcycle gangs at Sydney Airport on 22 March 2009. The violence occurred first near Gate 5 of the Qantas domestic terminal, and then in the departure hall minutes later. One person, Anthony Zervas, died as a result of injuries sustained in the departure hall.
The accused in this ruling, one of seven co-accused standing trial, faced charges of affray (relating to the Gate 5 incident) and riot, alternatively affray (relating to the departure hall incident). He was not alleged to be criminally responsible for the death.
At the close of the Crown case, counsel for the accused made a no case to answer submission, arguing the evidence was insufficient to support a conviction on any of the charges. The trial judge deferred judgment briefly to resolve a related statutory construction question and then delivered these reasons.
Legal Issues
- Whether the Crown had adduced sufficient evidence, taken at its highest, capable of supporting a conviction for affray at Gate 5
- Whether the Crown had adduced sufficient evidence capable of supporting a conviction for riot, or alternatively affray, in the departure hall
- Whether evidence of self-defence or defence of another was capable of negating the element of "unlawful" violence, such that no jury could exclude that possibility beyond reasonable doubt
Decision
Hulme J applied the well-established principles for no case to answer applications in criminal trials. The Crown case must be taken at its highest, and the matter must be left to the jury wherever there is evidence, even if tenuous or inherently weak, capable of supporting a guilty verdict. It is not the trial judge's role to assess whether a conviction would be unreasonable, nor to resolve competing hypotheses.
On the Gate 5 affray charge, Hulme J was satisfied the evidence was capable of establishing that the accused used or threatened unlawful violence. The evidence included security camera footage, multiple witness accounts of a violent brawl between the two groups, and a body of circumstantial material that could support the inference the accused was an active participant rather than merely a victim.
On the departure hall riot and alternative affray charges, the Crown relied on security footage, witness observations of the accused moving toward and engaging in the fighting, and a series of post-incident circumstances. These included the accused's behaviour immediately after the violence, particularly his departure from the terminal without assisting Anthony Zervas or offering support to a companion in visible distress. Hulme J found this evidence, taken as a whole, was capable of supporting guilt.
The submission that self-defence or defence of another could not be negated was rejected. Hulme J held that evidence of the accused running toward the fighting and being observed fighting was capable of satisfying the jury beyond reasonable doubt that either or both limbs of the statutory self-defence test under section 418 of the Crimes Act 1900 were not met.
Orders Made
• Refused the application to direct the jury to return verdicts of not guilty
• Found there is a case to answer in respect of the charge of riot, and the alternative charge of affray
Key Takeaways
- On a no case to answer application, the Crown case is taken at its highest; a trial judge's role is limited to asking whether the evidence is capable of supporting a conviction, not whether a conviction would be reasonable.
- Competing hypotheses, including the possibility of self-defence, are matters for the jury to resolve and do not, in themselves, warrant a directed verdict of not guilty.
- Circumstantial evidence, including post-incident conduct such as departing the scene without rendering assistance to a seriously injured companion, can form part of the evidence capable of supporting an inference of guilt.
- Where evidence showed the accused moved toward and participated in group fighting, the Supreme Court held this was sufficient to be capable of disproving self-defence beyond reasonable doubt under section 418 of the Crimes Act 1900.
- Even tenuous, vague, or inherently weak evidence must be left to the jury if it is capable of affording a verdict of guilty.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), ss 93B (riot), 418 (self-defence)
- Criminal Appeal Act 1912 (NSW)
Cases
- Colosimo v Director of Public Prosecutions (NSW) [2006] NSWCA 293
- R v Hawi & ors (No 18) [2011] NSWSC (unreported)
- R v Keli Lane [No 18] [2010] NSWSC 1545
- Doney v R (1990) 171 CLR 207
- R v PL (2009) NSWCCA 256
- R v JMR (1991) 57 A Crim R 39