R v Hawi & ors (No 5) [2011] NSWSC 1651

Supreme Court New South Wales

Medium Neutral Citation: R v Hawi & ors (No 5) [2011] NSWSC 1651 Hearing dates: 16 May 2011 Decision date: 18 May 2011 Jurisdiction: Common Law - Criminal Before: R A Hulme J Decision: Evidence admitted in part Catchwords: CRIMINAL LAW - evidence - relevance - whether unfairly prejudicial - photographs of accused showing tattoos - photographs of one accused in prison clothing Category: Procedural and other rulings Parties: Regina Mahmoud Hawi Farres Abounader Usama Potrus Zoran Kisacanin David Padovan Representation: Counsel: Ms N Adams with Ms H Roberts (Crown) Mr S Grant (Hawi) Mr J Trevallion (Abounader) Mr R Driels (Potrus) Mr J Gordon (Kisacanin) Mr A Conwell (Padovan) Solicitors: Solicitor for Public Prosecutions (Crown) Sid Hawach & Co (Hawi) Archbold Legal (Abounader) Barakat Lawyers (Potrus) Elie Rahme & Associates (Kisacanin) Nyman Gibson Stewart (Padovan) File Number(s): 2009/50087

Judgment 1HIS HONOUR: The Crown proposes to tender before the jury 20 pages, each containing photographs and other identifying information relating to the 12 Comanchero and 8 Hells Angels who were at Sydney Airport on 22 March 2009. Each page, insofar as they concern the seven accused, contain still photographs taken from CCTV footage at the airport, photographs taken at some time subsequent to 22 March 2009, and some "biometric details", that is, age, height and weight if known. 2The Crown Prosecutor proposes to tender as an exhibit during her opening address a folder containing various maps, plans and photographs and it is proposed to include the 20 pages to which I have just referred. Objection is taken on behalf of some of the accused to the admissibility of some of the photographs and so it is appropriate to resolve such objection now so that the compilation of the jury folders may proceed. 3Objection is also taken by Mr Driels, counsel for the accused Potrus, to a photograph of his client that is included in a PowerPoint presentation that the Crown proposes to tender. This is a series of still images taken from CCTV footage at the airport. It has various captions and labels designed to assist the jury to understand who and what is depicted. The PowerPoint presentation has been compiled from the footage from a number of CCTV cameras and the idea, as I understand it, is to provide such a compilation in a chronological order so that the jury can better understand the events which occurred in their proper sequence. 4The image that Mr Driels is concern with is a head and shoulders, face to camera, photograph of Mr Potrus which has a line connecting it to a figure in a CCTV still that depicts seven men. The purpose appears to be to identify the figure indicated to be Mr Potrus and so there is the photograph with his name underneath it. I was acquainted with this by the Crown providing me with a printout of the PowerPoint presentation. It is not intended that the jury will be provided with this printout, but the Crown will tender a disc containing a recording of the presentation. I suppose, however, that when the jury replay this recording in the jury room, it will be open to them to stop or pause on particular slides in order to make a closer examination. For this reason it is appropriate to approach this issue as if what was being tendered was a still photograph of Mr Potrus. 5If the subject of this judgment is of any relevance at a later time, I record that oral submissions were made by counsel on 11, 16 and 17 May 2011. Written submissions dated 13 May 2011 were also provided by the Crown Prosecutor. Exhibits on what I have called the "admissibility of photographs voir dire" are the 20 photographs of the Comanchero and Hells Angels members who were at the airport on 22 March 2009 (Exhibit A); the PowerPoint printout (Exhibit B) and statements by witnesses identified by the numbers 9 and 48 (Exhibit K1). 6Before dealing with the objections taken on behalf of each accused it is useful to note the nature of descriptions given by some of the eyewitnesses. I have taken the following sample from the Crown's written submissions: Witness 300 witnesses the fatal assault upon the deceased. He describes a man on the ground attempting to fend off his attackers. He describes a man assaulting him with a bollard as being: "Lebanese, 6'4", muscular, looked like steroid user, dark coloured short hair, long in back, tattoos on arms, dark coloured singlet and grey tracksuit pants." Witness 3 was working at a check in counter when she saw two men running towards her. One, chasing another male, was muscular, tall, had a tattoo on right bicep. Witness 77 saw a man assault [the deceased] with a silver stand. The male was: "6', big build, well built, middle eastern appearance, olive skin, short dark hair, coloured tattoos around both biceps, ripped tshirt, tracksuit pants, running shoes". Witness 42 saw a male swing a bollard down on [the deceased] twice and describes him as follows: "very tall about 6'5"m olive skin, dark short shaved hair, short sleeved yellow coloured shirt, tattoos in blue/pink amongst darker colours, they were from elbow to shoulders, dark coloured track pants". Witness 21 heard yelling coming from the economy check in, looked and saw men running towards doors, between check-in counters. One was wearing a dark grey singlet and had tattoos all down his arms. 7It is also worthwhile noting that no objection was taken by senior counsel for the accused Menzies to the page concerning his client. It includes two photographs showing tattoos on his left and right lower arms and another photograph showing an "ACCA" tattoo on the front of his neck. Evidence elsewhere indicates that "ACCA" is an acronym for "Always Comanchero, Comanchero Always". 8No objection was taken by senior counsel for the accused Eken to the page concerning his client either. The photographs do not depict any tattoos or any other matters of concern. 9No counsel objected to the pages concerning the other Comanchero and Hells Angels members who were present at the airport. Photographs of Mr Costa show that he is heavily tattooed on both arms, his left shoulder and his left chest. Mr Aouli is shown wearing a long-sleeved shirt with sleeves rolled up with no visible tattoos. Mr La Rosa has both upper arms heavily tattooed. Tattoos on both arms and across the chest are shown in the photographs of Mr Pirini. There are tattoos extending down the length of SP's left arm as well as tattoos on the back of the neck and on the right upper arm. AL is shown to have discrete tattoos on both arms but they are not as extensive as others. Mr Ovalle has a heavily tattooed right upper arm but no visible tattoos elsewhere. Mr Peter Zervas has a tattoo of the words "Hells Angel" on his upper chest, a heavily tattooed left upper arm and chest, and a tattoo on his right forearm. There are no photographs, apart from CCTV still images, of the deceased and the Hells Angels members, Messrs Wainohu, Baker, Martin and Khoury