Australia: An unreasonable prosecution fails -- at a large cost to the taxpayer

THE prosecution of a member of the Hells Angels bikie gang over a fatal brawl at Sydney Airport has been criticised by a Supreme Court judge as "unreasonable" and not backed by the evidence.

The bikie, David Padovan, was acquitted by a jury in November of two charges of affray and one of riot over his alleged role in a fight at the arrival gate and another in the departure hall two years ago.

But Supreme Court Justice Robert Hulme, who presided over the trial, said it was "unreasonable for the crown to have instituted proceedings against him" because the case against him was "tenuous" and "weak".

Justice Hulme ruled Mr Padovan was entitled to apply to have his legal costs - believed to amount to about $500,000 - paid by the Attorney-General's Department.

It is the latest blow to the Office of the DPP after criticism of the prosecution in the case of Gordon Wood. The office declined to comment on the judgment.

Mr Padovan was one of seven Hells Angels who had come to the airport to meet their president Derek Wainohu after he was on a plane with five members of the rival Comanchero bikie gang.

But, Justice Hulme found, rather than being an aggressor, Mr Padovan had been a victim. "The Crown Prosecutor's submission that … Mr Padovan exercised a choice to involve himself in the fighting was, with respect, fanciful … The evidence simply did not support it."

Witnesses described that at the first fight, at the arrivals gate, Mr Padovan was punched and kicked by Comanchero members while he was on the ground. Moments later he helped Mr Wainohu, who was then being assaulted by others.

A few minutes later another fight broke out in the departure hall and the crown relied mainly on one witness who did not make a police statement until nine months later. He said several things which were clearly incorrect, and Justice Hulme found his evidence was "utterly unreliable".

Mr Padovan's solicitor Phil Stewart said the trial and committal proceedings had taken nine months of his client's life. He had also spent several weeks in custody before being granted bail. "Nine months of your life where you have to be in court to defend yourself is a big impost on a person who is patently not guilty from the start," Mr Stewart said.

Mr Padovan's defence had been funded by Legal Aid, but after the judge granted him a costs certificate, it is expected the government will reimburse the organisation for the costs to be borne by the Attorney-General's Department instead. In the three years to 2011, the government paid costs in 152 cases, paying more than $4.2 million in legal costs under such certificates.

Original report here




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