Citation: R v Hawi & ors (No 23) [2011] NSWSC 1669
Court: Supreme Court of New South Wales
Date: 23 August 2011
Judge: R A Hulme J
Background
This ruling arose during a high-profile murder trial concerning a fatal affray at Sydney Airport on 22 March 2009. The accused Hawi was among a group of Comancheros who came into contact with a group of Hells Angels in the departure hall. It was common ground that the deceased, Anthony Zervas, initiated an attack on Hawi with a pair of scissors.
The Crown case was that Zervas was immediately chased by Comancheros from behind the check-in counters to the front of the terminal, where he was fatally assaulted on the ground. Hawi's case was markedly different: he claimed Zervas pursued and attacked him continuously through the check-in area and then launched a second, separate attack with another weapon near the front of the terminal.
Two days before the airport incident, Zervas had allegedly attacked a police officer (Sergeant Fotopoulos) with a knife at a residential unit complex, stabbing him twice in two separate attacks before eventually leaving. Hawi sought to lead this prior conduct, along with Zervas's criminal history, as tendency evidence under the Evidence Act 1995.
Legal Issues
- Whether evidence of the prior knife attack on Sergeant Fotopoulos was admissible under s 97 of the Evidence Act 1995 as tendency evidence about the deceased
- Whether that evidence had "significant probative value" in relation to a fact genuinely in issue at trial
- Whether the deceased's prior criminal convictions for violence were separately admissible as tendency evidence
Decision
The central question under s 97 of the Evidence Act 1995 is whether tendency evidence has "significant probative value." Hulme J identified the critical contested fact: whether, after his initial attack on Hawi, Zervas continued to pursue and attack Hawi (as the defence alleged) or was instead chased down and killed by Comancheros (as the Crown alleged). The resolution of that factual dispute made the Fotopoulos evidence potentially significant.
His Honour admitted the Fotopoulos evidence on the basis that it was capable of establishing a tendency in Zervas to engage in, and persist with, violent conduct using a weapon. The prior incident involved two separate attacks with a knife and continued aggression despite resistance, closely mirroring the defence's account of Zervas's conduct at the airport. That potential similarity gave the evidence significant probative value in resolving the disputed fact.
His Honour rejected several broader tendency formulations proposed by Hawi's counsel, including tendencies relating to drug use, secreting weapons, or being armed in public. The admissible tendency was confined to engaging in and persisting with violent, weapon-based conduct.
The deceased's prior criminal convictions for violence were not admitted. His Honour found those convictions were predominantly for minor domestic assaults, contained no meaningful detail about the underlying conduct, and bore no significant similarity to the conduct alleged on either 20 or 22 March 2009. They therefore lacked significant probative value.
Orders Made
• Evidence of Sergeant Fotopoulos was admissible
• Evidence of the deceased's prior convictions was not admissible
Key Takeaways
- Under s 97 of the Evidence Act 1995, tendency evidence about a deceased victim is admissible where it has "significant probative value" in relation to a fact genuinely in issue, even when the person whose conduct is in question is not the accused.
- The Supreme Court distinguished between two categories of proposed tendency evidence: a specific prior incident (admissible) and a general criminal history (not admissible). The distinction turned on whether the evidence disclosed conduct sufficiently similar to the alleged conduct at trial.
- Prior convictions alone, without detail about the underlying conduct, are unlikely to establish significant probative value as tendency evidence where no meaningful similarity can be drawn to the facts in issue.
- The probative value of tendency evidence must be assessed against the particular facts in dispute between the parties, not against every fact in issue in the proceedings. Here, only one contested fact mattered, but it was sufficiently significant to ground admission.
- A court may admit tendency evidence in a narrow, confined form even where it rejects the broader range of tendencies proposed by the party seeking admission.
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW), s 97 (the tendency rule)
Cases
- R v AH (1997) 42 NSWLR 702
- 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