Supreme Court New South Wales Medium Neutral Citation: R v Padovan [2012] NSWSC 204 Hearing dates: On the papers Decision date: 08 March 2012 Jurisdiction: Common Law - Criminal Before: R A Hulme J Decision: Certificate granted pursuant to s 2 of the Costs in Criminal Cases Act Catchwords: CRIMINAL LAW - procedure - costs - application for costs certificate - Costs in Criminal Cases Act 1967 - ss 2, 3, 3A - unreasonable for Crown to have instituted proceedings against the defendant - evidence supporting Crown case inherently tenuous and weak Legislation Cited: Costs in Criminal Cases Act 1967 Crimes Act 1900 Cases Cited: Mordaunt v Director of Public Prosecutions [2007] NSWCA 121; (2007) 171 A Crim R 510 R v Eken; R v Potrus [2012] NSWSC 2 R v Hawi & ors (No 2) [2011] NSWSC 1648 R v Hawi & ors (No 9) [2011] NSWSC 1655 R v Keli Lane [No 18] [2010] NSWSC 1545 R v Manley [2000] NSWCCA 196; (2000) 49 NSWLR 203 R v Pavy (1997) 98 A Crim R 396 Category: Principal judgment Parties: Regina David Padovan Representation: Mr H Roberts (Crown) Mr A Conwell (Applicant) Solicitor for Public Prosecutions Nyman Gibson Stewart File Number(s): 2009/59368 Judgment 1HIS HONOUR: On 24 May 2011, David Padovan was arraigned and pleaded not guilty to two charges of affray and one of riot. These are offences against ss 93B and 93C of the Crimes Act 1900. A jury was empanelled and a trial proceeded until the jury retired on 29 September 2011. On 2 November 2011 the jury returned with verdicts of not guilty in respect of each charge. 2Shortly after his acquittal, Mr Padovan through his counsel, Mr Conwell, foreshadowed he may apply for a certificate under s 2 of the Costs in Criminal Cases Act 1967 (the Act). The following day, Mr Conwell confirmed that an application would be made. The matter was not urgent and other matters were more immediately pressing. Ultimately, it was the agreed position of the parties that the matter could proceed by way of written submissions without the need for oral argument. I have received written submissions from Mr Conwell dated 19 January 2012 and written submissions from the Crown Prosecutor dated 20 February 2012. Mr Conwell indicated that he did not wish to make any submissions in reply. The legislation 3Section 2 of the Act, relevantly, is in the following terms: 2 Certificate may be granted (1) The Court or Judge or Magistrate in any proceedings relating to any offence, whether punishable summarily or upon indictment, may: (a) where, after the commencement of a trial in the proceedings, a defendant is acquitted ... ... grant to that defendant a certificate under this Act, specifying the matters referred to in section 3 and relating to those proceedings. 4As to what must be established before any such certificate may be granted, s 3 provides: 3 Form of certificate (1) A certificate granted under this Act shall specify that, in the opinion of the Court or Judge or Magistrate granting the certificate: (a) if the prosecution had, before the proceedings were instituted, been in possession of evidence of all the relevant facts, it would not have been reasonable to institute the proceedings, and (b) that any act or omission of the defendant that contributed, or might have contributed, to the institution or continuation of the proceedings was reasonable in the circumstances. (2) (Repealed) 5The reference to "relevant facts" in s 3(1)(a) includes "the relevant facts established in the proceedings": s 3A(1)(a). Although they were entitled to (s 3A(1)(b) and (c)), neither the applicant nor the prosecutor sought to establish any further relevant facts on the application. 6The effect of granting a certificate is to enable the applicant to apply to the Director-General of the Department of Attorney General and Justice for payment of costs incurred in the proceedings. It is then a matter for the Director-General to determine whether the making of a payment to the applicant is justified and, if so, to determine the amount of costs that should be paid (s 4). Principles 7McColl JA (Beazley and Hodgson JJA agreeing) usefully set out the principles relevant to the determination of applications for a s 2 certificate in Mordaunt v Director of Public Prosecutions [2007] NSWCA 121; (2007) 171 A Crim R 510 at [36]. Those that are relevant to the present application are as follows: ... (a) [The Act] is reforming legislation with a beneficial purpose designed to confer valuable privileges upon persons who succeed in criminal prosecutions; its provisions should not be narrowly construed so as to defeat the achievement of its general purposes: Nadilo v Director of Public Prosecutions (1995) 35 NSWLR 738 at 743 per Kirby P; see also Allerton v Director of Public Prosecutions (1991) 24 NSWLR 550 (at 559-560) per Kirby P, Meagher JA, Handley JA; ... (c) The "institution of proceedings" in s 3 refers to the time of arrest or charge not to some later stage such as committal for trial or the finding of a bill: Allerton (at 558); (d) The applicant for a s 2 certificate bears the onus of showing it was not reasonable to institute the proceedings; it is not for the Crown to establish, nor for the Court to conclude, that the institution of the proceedings, was, or would have been in the relevant circumstances, reasonable: Manley (at [15]) per Wood CJ at CL; R v Johnston [2000] NSWCCA 197 (heard concurrently with Manley ) (at [17], [29]) per Simpson J (Wood CJ at CL agreeing); (e) The task of the court dealing with an application under [the Act] is to ask the hypothetical question, whether, if the prosecution had evidence of all the relevant facts immediately before the proceedings were instituted it would not have been reasonable to institute the proceedings: Allerton (at 559 - 560); the judicial officer considering an application must find what, within the Act, were "all the relevant facts" and assume the prosecution to have been "in possession of evidence of" all of them and must then determine whether, if the prosecution had been in possession of those facts before the proceedings were instituted, "it would not have been reasonable to institute [them]; an applicant for a certificate must succeed on both the "facts issue" and the "reasonableness issue": Treasurer in & for the State of New South Wales v Wade & Dukes (Court of Appeal, 16 June 1994, unreported, BC9402561) per Mahoney JA (with whom Handley and Powell JJA agreed); Ramskogler (at 134 - 135) per Kirby P; (f) The hypothetical question is addressed to evidence of all of the relevant facts, whether discovered before arrest or before committal (if any); after committal and before trial; during the trial; or afterwards admitted under s 3A of [the Act]; all of the relevant facts proved, whenever they became known to the prosecution and whether or not in evidence at the trial, must then be considered by the decision-maker: Allerton (at 559 - 560); Manley per Wood CJ at CL (at [9]); the relevant facts include those relevant to the offences charged and the threshold question posed by s 3(1)(a); other facts will also be relevant and admissible going, amongst other things, to the question posed by s 3(1)(b) and to the ultimate question whether, assuming that the court is of the opinion required to be specified, it should exercise its discretion under s 2: Gwozdecky v Director of Public Prosecutions (1992) 65 A Crim R 160 (at 164 - 165) per Sheller J (with whom Mahoney JA and Hope AJA agreed); (g) Courts should not attempt to prescribe an exhaustive test of what constitutes unreasonableness for the institution of the proceedings within the meaning of s 3(1)(a): Fejsa v R (1995) 82 A Crim R 253 at 255; Manley per Wood CJ at CL (at [13] - [14], however the factors set out in (h) - (n) have been identified as germane; (h) The reasonableness of a decision to institute proceedings is not based upon the test that prosecution agencies throughout Australia use as the discretionary test for continuing to prosecute, namely whether there is any reasonable prospect of conviction, nor is it governed by the test in s 41(6) of the Justices Act 1902 [prior to its repeal] applied by magistrates, namely whether no reasonable jury would be likely to convict; the test cannot be a test of reasonable suspicion which might justify an arrest and it cannot be the test which determines whether the prosecution is malicious: R v McFarlane (Blanch J, 12 August 1994, unreported); app. Manley per Wood CJ at CL (at [12]), per Sully J (at [42]); Regina v Hatfield [2001] NSWSC 334; (2001) 126 A Crim R 169 per Simpson J; and adopted by Blanch AJ (with whom Spigelman CJ and Simpson J agreed) in Regina v Ahmad [2002] NSWCCA 282; (i) The fact a prosecution may be launched where there is evidence to establish a prima facie case does not mean it is reasonable to launch a prosecution; there may be cases where there is contradictory evidence and where it is reasonable to expect a prosecutor to make some evaluation of that evidence: McFarlane ; app. Manley per Wood CJ at CL (at [12]); (k) The fact that a court concluded the evidence was insufficient to warrant a conviction is not necessarily indicative of unreasonableness: R v Williams; ex parte Williams [1970] 1 NSWR 81 (at 83) per Sugarman P (with whom O'Brien J agreed; cf Manning JA (at 85)); (l) The fact that a court enters a judgment of acquittal in favour of an accused does not mean that it was not reasonable to have prosecuted; sometimes that course is followed rather than to order a new trial if (for example) the accused has already served most of the sentence imposed upon him or her: Fejsa (at 255); cited with approval in Hatfield (at [9]) per Simpson J; (m) Section 3 calls for an objective analysis of the whole of the relevant evidence, and particularly the extent to which there is any contradiction of expert evidence concerning central facts necessary to establish guilt, or inherent weakness in the prosecution case; matters of judgment concerning credibility, demeanour and the like are likely to fall on the other side of the line of unreasonableness, being matters quintessentially within the realm of the ultimate fact finder, whether it be Judge or Jury: Manley per Wood CJ at CL (at [14]); Johnston (at [26] [29]) per Simpson J (with whom Wood CJ at CL and Sully J agreed); it is not sufficient to establish the issue of unreasonableness in favour of an applicant for a certificate that, in the end, the question for the jury depended upon word against word; in a majority of such cases, it would be quite reasonable for the prosecution to allow those matters to be decided by the jury; it would be different where the word upon which the Crown case depended had been demonstrated to be one which was very substantially lacking in credit: R v Dunne (Hunt J, 17 May 1990, unreported); ... (o) In considering an application for a certificate it is relevant to have regard both to the information in the possession of the prosecuting authorities, and the conduct of the defendant, bearing in mind the essentially adversarial nature of a criminal prosecution and the tactical decisions that are legitimately a part of the process: Manley per Simpson J (at [76]) (Wood CJ at CL agreeing); ... (r) Before a certificate is granted, the judge must have formed an opinion specifying the matters in s 3(1)(a) and (b), and must also exercise the residual discretion, contemplated by s 2, to grant a certificate: Ramskogler (at 140) per Handley JA; (at 142) per Sheller JA; cf Solomons v District Court of New South Wales (at [50]) per McHugh J. 8McColl JA continued: [37] In Manley (at [43]) Sully J referred with approval to Sugarman P's statement in Williams (at 83) that "relevant facts" did not mean "'all' the relevant facts in any literal or absolute sense" and that "omniscience is not to be attributed to the prosecution in the hypothetical inquiry" and: "'All the relevant facts' means, in my opinion, all the relevant facts as they finally emerge at the trial; the facts in the prosecution's case but, as well, the facts in the accused's case as these emerged from cross-examination of the prosecution's witnesses or from evidence called by the accused. That seems to me the nature of the hypothetical inquiry which is called for by s 3(1)(a)." 9Counsel for the applicant also referred to the joint judgment of Hunt CJ at CL, Smart and Badgery-Parker JJ in R v Pavy (1997) 98 A Crim R 396 in which it was stated (at 401): The legitimate interest which the community has in serious crimes being prosecuted by the Director of Public Prosecutions is not disputed. That cannot, in our judgment, make it reasonable as between the Crown and the accused/applicant to prosecute in face of significant weaknesses in the Crown case of which the Crown acting reasonably, ought to have been aware. 10Reference was also made to the judgment of Wood CJ at CL in R v Manley [2000] NSWCCA 196; (2000) 49 NSWLR 203 at 206: [17] It was submitted by the Crown that, in determining whether it was or was not reasonable for the DPP to institute the proceedings, it was proper to take into account matters of public policy such as the necessity to ensure that justice is seen to be done in serious cases of criminality, and the necessity to secure public confidence in the justice system and in the Courts, and also to have regard to the prevalence of the offence being prosecuted and the degree of public concern in relation to it. In my view such considerations are irrelevant to the evaluation, by the hypothetical prosecutor of the evidence, the knowledge of which is imputed to the prosecution. [18] The independence of the office of the Director of Public Prosecutions, and the presence in office of a Director responsible for the institution of criminal proceedings in the interests of the State, must be preserved. Neither is threatened by a construction of the provision which directs attention to the evidence of the relevant facts in an individual case. It would be unacceptable to impose some qualification upon the section designed to encourage prosecutions in order to satisfy some ill defined community interest in bringing a particular accused, or kind of matter, before the Courts. Indeed, to do so may only serve to threaten the independence of the Director of Public Prosecutions. Overview of the case 11The trial was concerned with violent conflict between the Comanchero and Hells Angels outlaw motorcycle gangs at the Qantas domestic terminal at Sydney airport on 22 March 2009. Five Comanchero members, including their president, Mahmoud Hawi, and the president of the Hells Angels, Derek Wainohu, arrived on a flight from Melbourne. Before leaving Melbourne, Hawi directed that Comanchero members in Sydney be contacted and summoned to attend the airport. Wainohu did likewise by contacting Hells Angels members. 12Seven Comanchero and seven Hells Angels members came to the airport. They included the applicant who was a Hells Angels member. Five of the seven Comancheros and two of the Hells Angels, the applicant and Tom Baker, went through security screening to Gate 5 where passengers from the flight disembarked. The remainder waited outside in the departure hall; the two Comancheros near the main exit from the secure area and the five Hells Angels towards the opposite end of the terminal, about 70 metres away from the main exit. 13There was a confrontation between Hawi and Wainohu immediately after they had disembarked from the flight. Wainohu was punched to the ground. Comanchero members then chased and assaulted the applicant. He was brought to the ground where he was further punched and kicked. The Comancheros then regrouped and proceeded to walk out. The applicant returned to Wainohu and Baker in the vicinity of the gate. 14When the group of ten Comancheros emerged into the departure hall they were joined by the other two Comanchero members. The twelve then walked quickly behind the check-in counters towards the other side of the terminal where the five Hells Angels members had been waiting. A violent fight broke out when the two groups came together. One of the Hells Angels (he was not actually a member but was the brother of a member) was pursued through the check-in counters to the front of the terminal building where he went to the ground and was stabbed and bludgeoned to death. I have indicated in various sentence proceedings that I am satisfied that the Comancheros were the aggressors who initiated the violence: see, for example, R v Eken; R v Potrus [2012] NSWSC 2 at [42]. 15Nine out of the ten Comancheros who were at Gate 5 have either pleaded guilty or been found guilty of affray in respect of the first incident. Eleven out of the twelve Comancheros who were in the departure hall have either pleaded guilty or been found guilty of murder, manslaughter or riot. The twelfth Comanchero was acquitted of murder and the jury were unable to reach a unanimous or majority verdict on manslaughter. He is to be retried later this year. 16In contrast, the applicant was the only one of the three Hells Angels present at Gate 5 who was charged (but acquitted). Three of the eight Hells Angels who were in the departure hall were charged. Two pleaded guilty to affray and have been sentenced in the Local Court. The third was the applicant (again, acquitted). 17The approach I will take in examining the evidence will be to first look at that which the Crown relied upon in its closing address to the jury as supporting its case against the applicant in respect of each of the charges (T4157 - 4162). That seems to be an appropriate way to identify the case the Crown sought to make. It will then be possible to examine the cogency of that case in the light of all of the evidence in the trial. 18There was an issue raised prior to the trial about witnesses being concerned, and some being in fear, about the prospect of giving evidence: see R v Hawi & ors (No 2) [2011] NSWSC 1648 and R v Hawi & ors (No 9) [2011] NSWSC 1655. Being mindful of this, and noting that there is nothing significant in the names of any witnesses for the purposes of this judgment, I propose to refer to witnesses by their initials. Purpose of attending the airport 19The Crown relied upon an agreed fact in the trial (Exhibit GO) that there was on-going hostility between the Comancheros and the Hells Angels and that the accused (including the applicant) were aware of it. This provided a context in which to better understand the events that occurred at the airport on 22 March 2009. It said nothing directly about the question of whether any particular person participated in those events. Moreover, if there was evidence that a particular person did participate in some fashion, the antecedent hostility of which that person was aware had little relevance to the question whether the person attacked his rivals or was attacked by them. 20A schedule of telephone calls and text messages was in evidence (Exhibit GF). It disclosed that Derek Wainohu had communicated from Melbourne with Tom Baker. Baker arrived at the airport with the applicant. Therefore, the Crown argued, it could be inferred that Baker had contacted the applicant after he had been contacted by Wainohu. That might explain how it came about that the applicant attended the airport. It did not shed much light on why he attended. It may be readily inferred that he was made aware that there was a need for Hells Angels members to meet their president because he was alone on a flight in the presence of a number of the Comancheros. There was, however, no evidence from which it could be discerned whether the purpose of attending was to engage in violence against their rivals, or to simply defend their president if attacked. The affray at Gate 5 21It was the Crown case that the affray was started by the Comancheros, not by the Hells Angels. However, the Crown contended that the applicant was willing to fight with the Comancheros after Messrs Wainohu and Baker had been assaulted and were on the ground. 22There were many witnesses called to give evidence about the events at Gate 5. The Crown Prosecutor referred to the evidence of some of them in support of the contention to which I have just referred. 23Reference was made (T4158.2) to the evidence of MMcK who, the Crown Prosecutor submitted, said that Mr Padovan was being provocative and aggressive in his actions and his speech. She also described some taunting on his part. 24The evidence of MMcK was this (T443 - 450). She was standing near a donut stand in the middle of the concourse near to Gate 5. She heard something and looked around. There were three men fighting who were almost upon her. She moved away to near the Watermark bookstore from where she continued to watch. She saw two men attacking another man. She was concerned for the man being attacked. Her description clearly indicated that this was a reference to Mr Padovan. She said that his shirt was in tatters and later it was completely off. She said: The fight was fairly powerful I will guess is the way to describe it. The young man who was receiving the blows and the kicks, they were very - I wouldn't like to receive one, I think they would probably take me out. They were fairly ferocious, powerful blows. Q. When you say "blows"? A. Blows and kicks. Q. How many blows did you see? A. There were more blows than kicks, punches than kicks. I would say I saw probably five to eight punches and maybe three to four kicks. Q. What happened then? A. After - somehow the young man who was being beaten leapt to his feet which surprised, you know, given the power of the blows he had received. Q. Let me stop you there. When you say he leapt to his feet, what position was he in when you saw him do that? A. He was on the ground with his body in an arc curled towards me with the others punching him. Q. And he got to his feet? A. He sprang to his feet with obviously great fitness and he was then quite provocative and aggressive in his actions and his speech. Q. Can you describe for the Court what you saw and what you heard? A. I don't - I only remember one word which was repeated quite a lot and that was "fuck". I couldn't really say what else he said. His gestures were pretty much this (indicating), you know, very provocative. CROWN PROSECUTOR: For the record the witness has put both her hands in a fist and raised them out to her side and her fists were parallel with her head. (T444-445). 25After the fight concluded, Mr Padovan walked off with two men (Wainohu and Baker) and the two men "who were doing the attacking" walked off with a larger number of other men in the opposite direction. 26In cross-examination by senior counsel for Hawi, MMcK agreed that when "the man who was being attacked" sprang to his feet, he became "quite provocative in his mannerisms" and that he was "taunting his attackers" (T448). She agreed in cross-examination by Mr Conwell that she had said in her police statement that after the fight, the man without the shirt was yelling at the two men who were about 5 metres away from him; he was "taunting the men who had been attacking him" (T450). 27The next witness to whom the Crown Prosecutor referred was ID. She described his evidence as being that Mr Padovan approached two men, one being Wainohu, "and that Mr Padovan had an open stance and it was aggressive and he had clenched fists" (T4158.10). 28ID's evidence (T553 - 558) was that he saw two men fighting near the donut stand. One was "slumped" on the ground (the Crown contending, correctly in my view, that this was Wainohu) and the other man was above him and was "hitting [him] strongly with both hands". A third man came in and swung a punch at the man on the ground which was "very forceful". A fourth man who was without a shirt (Mr Padovan) approached the vicinity of the two men "with an open stance and perhaps aggressively". ID thought (Mr Padovan) had clenched fists. ID demonstrated by indicating both arms slightly away from his sides, with clenched fists. He was not sure if the man on the ground was still being punched at that time. ID then retreated and did not see any more. 29JD was ID's wife. The Crown Prosecutor referred to her evidence that she saw two men punching each other and that the shirt of the shorter of the two was coming off. It was submitted that this must have been a reference to Mr Padovan. 30JD's evidence (T423 - 427) was that she left her husband sitting near Gate 5 while she had a look in some of the nearby shops. When she was in the Guess shop she heard a commotion and she came outside to look. She saw three men. Two of the men were fighting and one was standing nearby watching. She said the two men were punching each other. The shorter of the two removed his shirt (i.e. Mr Padovan). The taller man then walked off in one direction and (Mr Padovan) and the man who had been watching walked off together in the opposite direction towards Gate 5. Mr Conwell had her confirm that she had said in her statement that she "saw a small male struggling with a bigger male" and that "the bigger male had hold of the smaller male's shirt and the smaller male shrugged out of his shirt and was bare-chested". 31Next, the Crown Prosecutor referred to the evidence of JS (T4158.21). She said that JS saw Hawi hitting Wainohu and then saw six or seven men pushing each other and hitting. If Wainohu and Baker were on the ground and did not fight back (as other evidence established), that meant that Mr Padovan was one of the six or seven men hitting or pushing (because the Comancheros would not be fighting amongst themselves). 32JS was a Qantas employee who was at Gate 5. He saw men who had disembarked from the flight in the middle of the concourse near the donut stand having an animated conversation and then one man (Hawi) pushed and punched another man (Wainohu) to the ground. Then a fight broke out between two groups of men. He said "the whole group of them began fighting". They were "just fighting"; "just punching". He was then distracted by making phone calls to summon security and the police. When he turned back, the fight had broken up and he saw "some of them got up and started running towards the gate 6 area and the other group were chasing them". There were "about six - half a dozen to seven" men that he saw "pushing and shoving or hitting each other". 33RO was said by the Crown Prosecutor (T4158.35) to have heard running and hostile and angry voices and then saw a man fitting Mr Padovan's description shaking his fist at someone and shouting. 34RO gave evidence (T670 - 674) that he was walking towards Gate 5 when he heard "groups of men shouting at each other and there was some sort of pursuit going on". He did not actually see this because of the large number of people on the concourse who were obscuring his view. He "assumed they were men and they seemed to be cursing". The tone of voice was "very angry, hostile". His evidence that the Crown relied upon concerning Mr Padovan was: [A]t one stage I was able to see through the crowd - you asked how many people were in the corridor, there were dozens and that meant I couldn't actually see the particular people, but at one stage there was a break and I saw through the break a - one man shaking his fist at someone, but that's the only person I actually saw who was I believe involved in that. (T671.47). 35This was said to be Mr Padovan because RO described this man as having no shirt. In cross-examination he agreed that this man appeared to be by himself. He could not tell whether he was being pursued or was pursuing. He had told the police that the man appeared to be "very angry" and "was shouting". Although he could not make out what he was saying, he thought he was swearing. The entire incident, as far as RO was concerned, lasted about ten seconds and "seeing the man would have been only a second or two". 36Finally, the Crown Prosecutor referred to the evidence of LY (T4158.38). She described his evidence as including that he saw ten men, four of whom were fighting. They were punching, kicking and swearing in Arabic. It was submitted that this must involve Mr Padovan because there was no evidence of Messrs Wainohu and Baker being engaged in the fighting. 37LY's evidence (T633 - 647) actually was that he heard yelling and screaming and he turned around and "was witnessed to a brawl" (sic). He thought that it was around ten men, four of whom were actually involved in fighting. There was punching, kicking and swearing back and forth. One of the persons fighting managed to break free. He had his jumper taken off him and he got away from the fight. The fight then stopped. This man (obviously Mr Padovan) walked back in the direction of Gate 5 and the others walked towards the exit. As they each walked in their respective directions there was swearing back and forth. This included someone in the group (Hawi) yelling at the other man, "You're a fucking dog, you're dead" and "Fuck you, we're gonna get you, you're a fucking dog". In cross-examination by Mr Conwell, LY agreed that "there were about five or six guys on the one guy and they were throwing kicks and punches". He agreed that "two guys tried to hold him but he broke free by the jumper being taken off him". 38After referring to the evidence of these witnesses, the Crown Prosecutor submitted to the jury that it established that Mr Padovan both used and threatened to use unlawful violence. She reminded the jury, however, that the Crown was only required to prove that he threatened unlawful violence to establish the charge of affray. She then turned to what she described as "the real issue in relation to Mr Padovan's guilt of the gate 5 affray"; whether the Crown could prove that he was not acting in self-defence. 39The argument presented on behalf of the Crown as to why it had established that Mr Padovan was not acting in self-defence was that: Mr Padovan did have a choice as to whether to run around and be involved in that fighting. Mr Wainohu and Mr Baker didn't get involved, but Mr Padovan did, and we say that was a choice on his part (T415925). 40That represented the entirety of the Crown Prosecutor's argument as to how self-defence had been disproved. Consideration 41Although it is not exactly the approach indicated in the authorities, taking the Crown case at its highest is sufficient in this case to establish that it was unreasonable for the Crown to have instituted proceedings against Mr Padovan in respect of the Gate 5 affray. 42I refused an application for a directed verdict in relation to the charge of affray (as well as in relation to the charges concerned with the departure hall incident). At that point I was required to take the evidence in the Crown case at its highest. That involved allowing for the possibility that the jury might accept certain portions of what a witness said and not other portions. I was also required to allow for the possibility that the jury might interpret the evidence in the manner for which the Crown contended and might draw inferences as it saw fit. 43One of the principles relevant to the determination of that application was that I should take into account evidence the Crown relied upon even if tenuous or inherently weak or vague: see the summary of principles conveniently collected by Whealy J (as his Honour then was) in R v Keli Lane [No 18] [2010] NSWSC 1545 at [3]. I am freed from those strictures when dealing with the present application and can make my own factual findings in the course of determining "all the relevant facts". Much of the evidence relied upon by the Crown in support of its case on affray is susceptible to the description of being "tenuous or inherently weak or vague". 44The evidence as to prior hostility and the manner in which Mr Padovan was summoned to attend the airport is entirely neutral on the issue whether he was an aggressor or was acting in self-defence. 45The evidence of MMcK was to the effect that Mr Padovan was on the receiving end of a powerful beating and when it was over he was angry with his attackers. ID's evidence was that Mr Wainohu was being seriously assaulted and was in a vulnerable position on the ground when Mr Padovan came to his defence. (If the Crown Prosecutor was correct in contending that this was at the beginning of the affray, it probably explains the Comancheros then turning their aggression on to Mr Padovan). The evidence of JD and JS does not permit any conclusion as to whether Mr Padovan was willingly fighting as opposed to being attacked and responding in self-defence. However, the manner in which Mr Padovan was outnumbered, the latter, if anything, is the more likely. The evidence of RO was completely neutral or, if not, favoured the notion that Mr Padovan was a victim, rather than an aggressor. LY's evidence, when viewed in its entirety is consistent with Mr Padovan being a victim who was set upon by at least three of the Comancheros. When he managed to break free when his shirt was torn off he immediately retreated to Gate 5. 46The Crown Prosecutor's submission that, in contrast to Messrs Wainohu and Baker, Mr Padovan exercised a choice to involve himself in the fighting was, with respect, fanciful. It is unsurprising that the submission was not further developed because it could not be. The evidence simply did not support it. Wainohu and Baker were struck to the ground. Thereafter, the Comancheros turned on Mr Padovan, pursued him, brought him to the ground and punched and kicked him. Little wonder that when the Comancheros desisted and withdrew he seems to have got up and waved his fists and yelled out at them. 47Mr Conwell set out in written submissions in support of the application for directed verdicts, and adopted in his written submissions on the present application, the evidence of a significantly larger number of witnesses than relied upon by the Crown at trial. Given I have reached a conclusion in the applicant's favour looking at only the evidence of witnesses the Crown relied upon, it is unnecessary to refer in any detail to the evidence of the others. Suffice to say, that body of evidence made a powerful case for Mr Padovan having been a victim of an attack upon him by the Comancheros. The written submissions for the Crown on the application accepted that the evidence of these witnesses provided a basis to conclude that "the applicant's actions were those of the losing party in the fight, and demonstrated only frustration and/or self-defence but not intentional violence or threats of violence". 48In the light of my findings as to what the evidence relied upon by the Crown actually established, or failed to establish, I am satisfied that it was not reasonable for the Crown to have instituted the proceedings against David Padovan on the charge of affray concerning the incident at Gate 5. Riot, alternatively affray, in the departure hall 49The Crown Prosecutor addressed the case against Mr Padovan on the charges of riot, alternatively affray, in the departure hall by arguing that they were made out by the following: * Mr Padovan ran into the departure hall to join the fight soon after it had started. * His blood was found in front of the check-in counters in an area where the fighting had been. * The estimated number of men involved in the fighting was such that he must have been involved. * A witness said that he saw a man whose description fitted Mr Padovan involved in the fighting. * Mr Padovan subsequently fled the terminal out of consciousness of guilt. 50The security camera footage showed that the Hells Angels (Messrs Wainohu, Baker and Padovan) walked down the corridor leading to the exit into the departure hall about a minute after the Comancheros had done so. 51After the Comancheros entered the departure hall they walked behind the check-in counters towards where the five Hells Angels were waiting. Security camera footage showing them walking in that direction also indicated that it was only 31 or 32 seconds later that Mr Padovan could be seen running in the same direction. In other words, when Mr Padovan had emerged into the departure hall, he became aware that the riot was in progress and he ran to join it. It was submitted that he ran in that direction because the riot was still behind the check-in counters at that point and the reason he did so was because he was "really annoyed about what had happened to him at Gate 5 and angry about that and so he ran over to join in another fight with the Comancheros". 52The Crown relied upon Mr Padovan's blood having been found in front of the check-in counters (counters numbered 12 and 13), and so he must have been in that location. 53Next, there was the evidence of the witness, MC. The Crown Prosecutor dealt with MC's evidence in some detail. I will summarise it shortly. It was anticipated that Mr Conwell would submit that MC had got a number of things wrong. However, it was submitted that the jury should accept the evidence of MC because in a number of respects it was consistent with other evidence, including in particular, the security camera footage. 54The Crown referred to evidence of some of the eyewitnesses who estimated that there were large numbers involved in the riot. One witness, RB put it as high as 12 to 16. This was said to support a proposition that Mr Padovan must have joined in the fighting because there simply were not enough Hells Angels to make up such numbers. 55Finally, the Crown relied upon flight. Mr Padovan left the airport a few minutes after the riot had concluded in the company of Messrs Wainohu and Baker. The Crown Prosecutor submitted that this was not the conduct of someone who had been a victim of something at Gate 5 and did not do anything in the riot. Mr Peter Zervas, a fellow Hells Angels member, was very agitated at the time because his brother was lying on the terminal floor with very grave injuries. The Crown Prosecutor submitted, "Mr Padovan did nothing to assist or wait around or console Peter Zervas, he just left". So, the jury was invited to infer that Mr Padovan fled the airport "because he was conscious of his guilt of what he'd done in the riot and the affray". Evidence of MC 56The Crown case in relation to Mr Padovan being involved in the fighting in the departure hall substantially depended upon the evidence of MC. For that reason it is worth spending some time on the detail of what he said (T3105 - 3114). Some comments will be interpolated. 57MC was a passenger on the flight from Melbourne with Mr Wainohu and the Comancheros. As he was disembarking he noticed a man (accepted to be Mr Wainohu). MC went to the bathroom near Gate 5 immediately after entering the terminal. He said he was there for 3 to 5 minutes. When he emerged he noticed (Mr Wainohu) with two other men, one of them being without a shirt (Baker and Padovan). He walked behind them down the corridor leading to the exit into the departure hall. He said "they appeared to be agitated". He recalled hearing a discussion which included someone saying "Is he here? Where is he". (It was not established who said these things or who was being referred to). 58MC then walked towards the front of the terminal because he was being collected by a friend who was going to take him to the international terminal on the opposite side of the airport. He was connecting to an international flight. As he came into the departure hall, he saw two of the men in front of him run in a direction behind the check-in counters (Baker and Padovan) "and the other one [Wainohu] running towards the opposite direction". 59He said that he saw "some type of affray that occurred which resulted in an individual lying on the ground" (obviously the deceased). The fight was towards the main entrance, in front of the check-in counters. He saw punching, kicking, and he distinctly remembered seeing the use of a steel bollard in the incident. (He gave what may be regarded as a very accurate description of the bludgeoning of the deceased with a bollard). 60MC said that he normally wore glasses, "for long distance". He was not wearing them at the time. He was asked about the clarity of his vision: Q. How clearly were you able to see that incident you've described? A. I'm certain it happened, I did witness it, an example of the clarity would be that I was legally able to drive without the spectacles, without the glasses, I just don't have the sharpness or absolute clarity, especially reading road signs and so forth, but I can quite honestly tell you I did witness that incident. (T3108.1) 61MC was then asked about the man he had described as having no shirt (Mr Padovan) and whether he saw him at all in the area of the fighting that he had described. He said, "he was part of the fight as well". He saw him kicking and punching. "He was part of the group also that was in the fight". 62As to what he saw next, he said that he saw "them" run out of the terminal. He saw two get into a taxi and some others running towards the public carpark. None of the Hells Angels did this; only the Commancheros). 63MC continued on his path to the front doors of the terminal and he gave evidence of his observations of the deceased on the floor which are presently irrelevant. He continued on and was met by his friend who took him to the international terminal. 64MC did not make his police statement until December 2009. 65In cross-examination by Mr Conwell, MC said that in his statement he described the colour of the shorts of the man without the shirt (Mr Padovan) as being "light coloured". (Mr Padovan was wearing black shorts). 66When he entered into the departure hall, he first saw the fight when he was within 10 metres of the door into the departure hall (according to the scale plans, a distance of about 65 metres). 67He agreed that there were "quite a few people in between [him] and the fight". He agreed with a proposition that there were about 15 or 20 people. He also agreed that there were a number of the self-service check-in machines as well. 68MC maintained that the "man from the aeroplane" (Wainohu) was involved in the fight (Clearly, and on the Crown case, he was not). 69He readily agreed that not wearing his glasses would have affected the clarity of what he observed. He also agreed that he was unable to say who had the bollard in his hands because he did not have his glasses on. He maintained, however, that the man without the shirt (Mr Padovan) with light coloured shorts (not Mr Padovan) was in close proximity to (where the deceased was on the ground). This was at the time when the deceased was being struck with the bollard. 70MC was unable to recall whether the man without the shirt had a hat on (Mr Padovan did). He then accepted, however, that he had said at the committal hearing that the man without the shirt did not have a hat. 71It was suggested to MC that the man without the shirt was, in fact, wearing light coloured tracksuit pants (this was a suggestion that it was Peter Zervas he had seen, not Mr Padovan). He maintained that he recalled the man having shorts on. 72MC was unable to say whether the man without the shirt was an aggressor or was defending himself. 73MC said that the last time he saw the man without the shirt was when he was exiting the terminal and heading, with others, towards a taxi or the carpark. (Clearly Mr Padovan did not). 74MC was then asked, and gave this answer: Q. Bearing in mind that you didn't have your glasses on at the time, bearing in mind the distance of your observations, if there was another man involved in the fight who appeared not to have a shirt, you could be mistaken, couldn't you? A. I could. (T3112.35) 75MC was asked about the angle from which he observed the "man without the shirt". He said that he could not give a definitive answer about that but added that his observation was from a distance of "maybe 30 metres". 76It was MC's recollection that the man he saw on the plane (Wainohu) was involved in the fight as well (clearly, he was not). He said that this man was "also kicking and punching". Consideration 77Mr Conwell submitted that one matter to be taken into account was the "exculpatory evidence" of SP and the offenders Hawi and Menzies. The Crown submitted that it was not appropriate to take into account the evidence given in the trial by two accused persons. I do not think the point needs to be determined because the evidence was not exculpatory, it was neutral. Each of these men simply said that they did not see Mr Padovan in the departure hall. With all that was going on at the time, that is not surprising. It does not mean that he was not there. 78The evidence of Mr Padovan's blood being found in front of check-in counters 12 and 13 is something of a mystery. There was no direct evidence as to how it got to be there. Mr Padovan did not, of course, give evidence. The Crown submitted that it was consistent with him fighting in that location. Mr Conwell submitted that Mr Padovan had to have, at some stage, gone in between the counters, from behind to the front, because he was not otherwise seen on security camera footage going around them. 79Mr Conwell submitted that there was an alternative explanation for Mr Padovan bleeding. He could have been bleeding as a result of what occurred to him at Gate 5. There was no crime scene examination at that location so there is nothing to say whether he did, or did not, bleed there. Against that, it must be expected that if Mr Padovan was bleeding all the way from Gate 5 to the departure hall and in front of the check-in counters, there would be more than a single blood spot in a single location. But, regardless of that attempt to explain it, the point really is that if the blood came to be there because Mr Padovan was involved in the fighting at that location, there is nothing about it that would enable a choice to be made as to whether he was fighting as an aggressor or he was being attacked again, like he had been moments earlier. 80Mr Conwell sought to provide an explanation for Mr Padovan running as he emerged into the departure hall. He submitted that at about the same time, there was a Comanchero member (AL) shaping up to a Hells Angels member (Peter Martin) behind the check-in counters. The timing on the security camera footage was said to support the coincidence of these two events. So, it was submitted, Mr Padovan was acting in self-defence (defence of another). This was an argument designed to meet the Crown's contention that Mr Padovan was running to join in the riot. 81I am unable to find that this evidence supports one party's case to the detriment of the other party's case. It might be one, or the other. Like the blood, the only way of making anything of it is if there was other evidence of Mr Padovan being involved in the fighting. 82In my view there was no merit in the point that the number of men involved in the fighting supported the proposition that Mr Padovan must have been involved. The witnesses were only able to make very broad estimates as to the number involved. There were 17 Comancheros and Hells Angels in the departure hall before Messrs Wainohu, Baker and Padovan came on the scene. There could well have been 12 to 16 men involved in the fighting without involvement of any of those three men. 83Then there was the Crown contention that Mr Padovan fled the airport out of consciousness of guilt. Messrs Wainohu, Baker and Padovan did not leave immediately. They left, as the Crown Prosecutor conceded, a few minutes after the riot concluded. In the intervening period they were seen to be walking around the terminal. Mr Wainohu approached Peter Zervas who was in the vicinity of his brother and obviously distraught. A short time later the three Hells Angels walked out. In contrast, the Comancheros ran out of the building; some commandeered taxis and others ran a circuitous route around and then through the carpark, and then back out to the roadway in front of the lower level where their cars had been parked. More significantly, however, it was the Crown case that Messrs Wainohu and Baker were not guilty of the anything. Mr Padovan did exactly as they did. In my view, this evidence was entirely equivocal and could not advance the Crown case at all. 84The evidence of MC was really the lynchpin of the Crown case that Mr Padovan was guilty of either riot or affray. The least the Crown needed to prove in relation to the alternative was that Mr Padovan threatened unlawful violence. There was no evidence that he merely did that. Necessarily, the Crown put the case on the basis that Mr Padovan was actually involved in the fighting. MC's evidence, in my view, was an utterly unreliable basis to establish that proposition. 85The Crown accepted that MC was wrong in saying that Mr Wainohu ran into the departure hall and wrong in saying that he was involved in the fighting. He was wrong in saying that after the fight the man without the shirt ran out of the terminal towards a taxi or the carpark. He was wrong in saying that the man without the shirt wore light coloured shorts and no hat. 86One thing MC was correct about was the concession he gave that if there was another man involved in the fight who " appeared not to have a shirt" , he could be mistaken. Peter Zervas fitted that description. He was involved in the fight and he pleaded guilty to affray. He was wearing light coloured pants (albeit tracksuit pants and not shorts), no hat and a singlet top which was badly torn. Depending on the angle, he could well have appeared to have no shirt on, particularly when seen from a distance ("maybe 30 metres") with people and other obstacles intervening. MC was not the only witness who referred to the person who was obviously Peter Zervas as having no shirt (RK at T143.46; KT at T1344.45; AC at T766.44). 87Even if MC was correct in identifying Mr Padovan as being involved in the fight, his evidence was incapable of establishing that he was willingly fighting as opposed to defending himself or others. He said that he saw this man "kicking and punching" but when asked whether he could say anything further about what he was doing he could only say, "Just that he was part of the group also that was in the fight" . Conclusion 88The evidence to support the Crown's contention that Mr Padovan was involved in the fighting in the departure hall was inherently tenuous and weak. It was as unreasonable for the Crown to have instituted proceedings against him in respect of the charges of riot and affray in the departure hall as it was to have instituted proceedings against him for the affray at Gate 5. 89There was no unreasonable act or omission by Mr Padovan that contributed, or might have contributed, to the institution or continuation of the proceedings against him. Order 90Mr Padovan is granted a certificate pursuant to s 2 of the Costs in Criminal Cases Act . ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 08 March 2012