Commissioner of Police v Hawi - [2010] NSWLC 30

No judgment structure available for this case.

Local Court of New South Wales

CITATION: Commissioner of Police V Hawi and Ors [2010] NSWLC 30

JURISDICTION: Criminal

PARTIES: Commissioner of Police
Mahmoud Hawi and ors

FILE NUMBER:

PLACE OF HEARING: Central Local Court and Sydney West trial Court Parramatta

DATE OF DECISION: 07/09/2010

MAGISTRATE: Magistrate Favretto

CATCHWORDS: CRIMINAL LAW – committal proceedings - public interest immunity - application for non-disclosure - non-publication and pseudonym orders for civilian witnesses

LEGISLATION CITED: Criminal Procedure Act 1986, ss 56, 93
Evidence Act 1995, s 130
Local Court Rules 2009, r 3.7

CASES CITED: Attorney-General for New South Wales v Stuart (1994) 34 NSWLR 667
Director of Public Prosecutions v Smith (1996) 86 A Crim R 308
Eastman v R (1997) 76 FCR 9
John Fairfax Publications Pty Ltd v District Court of NSW (2004) 61 NSWLR 344
John Fairfax Publications Pty Ltd v Ryde Local Court of NSW (2005) 62 NSWLR 512
National Crime Authority v Gould (1989) 90 ALR 489
R v Davis [2008] UKHL 36
R v Meissner (1994) 76 A Crim R 81R v Ngo (2003) 57 NSWLR 55
R v Savvas, Stevens & Peisley (1989) 43 A Crim R 331
R v White Cotterell (NSWSC, unreported, 29 October 1992)
R v Wilkie, R v Burroughs, R v Mainprize [2005] NSWSC 794
State of New South Wales v Ryan (1998) 101 LGERA 246
Witness v Marsden (2000) 49 NSWLR 429
Yooyen, Tait and Poompiriyapinte v R (1991) 57 A Crim R 226
Young v Quin (1985) 59 ALR 225

TEXTS CITED:

REPRESENTATION:

ORDERS: This is an edited publication excluding parts of the reasons subject to Non-publication orders.

JUDGMENT

The Application

1 This is an interlocutory judgment in committal proceedings on an Application brought by the Commissioner of Police for New South Wales pursuant to Part 4 of the Local Court Act 2007. On 6 July 2010 (and as varied on 8 July 2010) the court made the following orders and reserved its reasons:

“ 1.That the names of the witnesses referred to in the witness statement by the numbers 226, 125, 146, 124, 116, 161, 478, 13, 230, 109, 222, 231, 218/228, 65, 14, 58, 22, 8, 15, 60, 69, 21, 9, 63, 243, 6, 4, 198/271, 272/273, 99, 98, 20/169, 11/261/262, 5, 42, 77, 232, 24, 133/305, 164, 267, 251, 254, 269, 300, 3, 34, 41, 242, 139, 163, 93, 102, 270, 265, 298, 12, 74, 135, 247 and 252 (together, “the witnesses”) not be adduced in evidence, or otherwise disclosed in the course of the proceedings.

2. In addition to the witnesses referred to in Order 1 above, that the names of civilian witnesses referred to in the witness statements by the numbers listed in Annexure A to those orders, not be adduced in evidence or otherwise disclosed in the course of the proceedings.

3. That the witnesses referred to in Orders 1 and 2 above (together, “the witnesses”) be addressed and referred to in court only by pseudonym during the proceedings.

4. That there shall be no publication of any matter likely to lead to the identification of the witnesses.

2 The basis of the application is that it would be injurious to the public interest for the real identities of the witnesses to be disclosed in evidence under s 130 of the Evidence Act 1995 or disclosed otherwise under the common law (the Public Interest Immunity Application).

3 The thirteen accused are charged relating to violent clashes between members or associates of the Comanchero Outlaw Motor Cycle Gang (OMCG) and the Hells Angels OMCG that occurred on 22 March 2009 at Sydney Airport Domestic Terminal 3 resulting in the death of Anthony Zervas, an associate of the Hells Angels OMCG. The accused are individually charged as follows:

4 Of the thirteen accused before the court twelve of them were at the relevant time members or associates of the Comanchero OMCG and three of them were at the relevant time members or associates of the Hells Angels OMCG.

5 The accused, Menzies, Padovan and Ovalle do not wish to be heard on the application.

Grounds for the Application

6 The grounds relied upon are set out in two Affidavits sworn by Andrew Phillip Scipione, the Commissioner of Police on 28 May 2010 and two Affidavits sworn by Inspector French, New South Wales Police Force on 24 June 2010. One each of the Affidavits from each deponent is an open Affidavit (Exhibits 2 and 4 respectively) and one each a confidential affidavit from each deponent (Exhibits 3 and 5 respectively). Consistent with the approved proper and acknowledged procedure by the superior courts reading of the confidential affidavits was limited to the court, the Crown Solicitor and counsel instructed on its behalf and neither the DPP or the accused had access to the confidential Affidavits: National Crime Authority v Gould (1989) 90 ALR 489 at 497; Yooyen, Tait and Poompiriyapinte v R (1991) 57 A Crim R 226 at 233; R v Meissner (1994) 76 A Crim R 81 at 84-85; Director of Public Prosecutions v Smith (1996) 86 A Crim R 308 at 310. No cross-examination was sought of either deponent, presumably as the accused understood they have no right and that in any event it should occur only in rare cases with leave: Young v Quin (1985) 59 ALR 225; Attorney-General for New South Wales v Stuart (1994) 34 NSWLR 667 at 681.

7 The thrust of the grounds relied upon by the Commissioner, as set out in the open Affidavits but with greater detail in the confidential affidavits, is twofold…. [Non-publication order applies to this part].

The accuseds’ objection to the Application

8 The accused challenge the application on a number of grounds. [Non-publication order applies to this part]. It was submitted that the open Affidavits should record what the witnesses have actually said without disclosing their identity. It followed, it was argued, that this was a deliberate tactic to keep from the accused what the witness said, so they could not respond and it amounted to a misuse by police of a public interest immunity application. The court ruled that upon a review of the confidential affidavits, the general narrative reflected what a significant number of identified witnesses had said in their own words in the confidential affidavits and it was permissible for the court to inform itself on that basis within the terms of s 130(3) of the Evidence Act (the court also notes that procedure to have been followed in National Crime Authority v Gould at 497; Yooyen, Tait and Poompiriyapinte v R at 233; R v Meissner at 84-85; Director of Public Prosecutions v Smith at 310).

9 Further, it was submitted that what a witness said… [Non-publication order applies to this part]; the denial of the witness’s real identity precludes testing his/her credibility, including making inquiries as to a witness, including, for example whether they have a criminal record; and, that given there had been already been disclosure of the names of some witnesses, when the statement had been imperfectly edited by police (name left at the bottom or in the body of the statement) it showed police had little concern for the safety of the witnesses.

Relevant Legislation

10 The Criminal Procedure Act 1986 provides:

“56 Committal proceedings to be heard in open court

(1) Committal proceedings are to be heard as if in open court.

(2) This section is subject to any other Act or law”.

“3.7 Addresses, dates of birth and phone numbers not to be disclosed on written statements

(1)

A copy of a written statement served on an accused person in committal proceedings must not disclose the address, date of birth or telephone number of the person who made the statement or of any other living person, unless:

(a)

the address, date of birth or telephone number is a materially relevant part of the evidence, or

(b)

a Magistrate makes an order permitting the disclosure in the statement.

(2)

An application for such an order may be made by the accused person or the prosecutor.

(3)

The Magistrate must not make any such order unless satisfied that the disclosure is not likely to present a reasonably ascertainable risk to the welfare or protection of any person or that the interests of justice (including the accused person’s right to prepare properly for the hearing of the evidence for the prosecution) outweigh any such risk.

(4)

This rule does not prevent the disclosure of an address in a written statement if the statement does not identify it as a particular person’s address, or it could not reasonably be inferred from the statement that it is a particular person’s address.

(5)

An address, date of birth or telephone number that must not be disclosed may, without reference to the person who made the written statement, be deleted from the statement, or rendered illegible, before the statement is served on the accused person.

In this rule,

“

address

”

includes residential address, business address, email address and web-based address.”.

11 The Evidence Act 1995 relevantly provides:

“

130 Exclusion of evidence of matters of state

(1) If the public interest in admitting into evidence information or a document that relates to matters of state is outweighed by the public interest in preserving secrecy or confidentiality in relation to the information or document, the court may direct that the information or document not be adduced as evidence.

(2) The court may give such a direction either on its own initiative or on the application of any person (whether or not the person is a party).

(3) In deciding whether to give such a direction, the court may inform itself in any way it thinks fit.

(4) Without limiting the circumstances in which information or a document may be taken for the purposes of subsection (1) to relate to matters of state, the information or document is taken for the purposes of that subsection to relate to matters of state if adducing it as evidence would:

…

(c) prejudice the prevention, investigation or prosecution of an offence, or

…

(5) Without limiting the matters that the court may take into account for the purposes of subsection (1), it is to take into account the following matters:

(a) the importance of the information or the document in the proceeding,

(b) if the proceeding is a criminal proceeding—whether the party seeking to adduce evidence of the information or document is a defendant or the prosecutor,

(c) the nature of the offence, cause of action or defence to which the information or document relates, and the nature of the subject matter of the proceeding,

(d) the likely effect of adducing evidence of the information or document, and the means available to limit its publication,

(e) whether the substance of the information or document has already been published,

(f) if the proceeding is a criminal proceeding and the party seeking to adduce evidence of the information or document is a defendant—whether the direction is to be made subject to the condition that the prosecution be stayed.

(6) A reference in this section to a State includes a reference to a Territory”.

12 In Eastman v R (1997) 76 FCR 9 the court (von Doussa, O’Loughlin and Cooper JJ) said of s 130 at 63:

“The "balancing exercise" to which his Honour refers is that required by s 130(1) of the Evidence Act . The trial judge must consider and weigh two competing aspects of the public interest, namely whether the public interest in admitting into evidence the material in the document that is a matter of state is outweighed by the public interest in preserving secrecy or confidentiality in relation to the material. Section 130 closely reflects the common law position: see the Australian Law Reform Commission Report 26 Evidence, Vol 1, pars 864-866. Referring to the common law position, Gibbs CJ in Alister v The Queen (1984) 154 CLR 404 at 412 said that the balancing exercise required the judge to consider whether harm would be done by the production of the documents, and whether the administration of justice would be frustrated or impaired if the documents were withheld, and to decide which of those aspects predominates.

Alister

13 In State of New South Wales v Ryan (1998) 101 LGERA 246 it was observed at p 9, that there was no difference between the common law and s 130 in relation to a claim of public interest immunity for Cabinet papers, it being noted that ALRC report No 26 (at par 864) indicated an intention “to interfere as little as possible with the common law as it developed with respect to public interest privilege”. It should be observed that s 130 is limited to “admitting into evidence information or a document” and so if the document or information is not admitted into evidence or is otherwise the subject of a subpoena, discovery or other disclosure procedure then it is left to the common law to protect any disclosure against the public interest.

The relevant applicable principles

14 It is a fundamental principle of the common law that the administration of justice must take place in open court and also well established that the exceptions to the principle of open justice are few and strictly defined: per Spigelman CJ in John Fairfax Publications Pty Ltd v District Court of NSW (2004) 61 NSWLR 344 at [18]-[19]. For present purposes that principle is reflected in the statutory mandate in s 56 of the Criminal Procedure Act 1986, subject to any other Act or law, which includes the common law.

15 However, it is a principle and not a right and where appropriate, yields to the public interest in non-disclosure: s 130 Evidence Act; John Fairfax Publications Pty Ltd v Ryde Local Court (2005) 62 NSWLR 512 where the Court (Spigelman CJ, Mason P and Beazely JA) said at [29]:

16 The need to protect witnesses by the use of non-disclosure and pseudonym orders as a category of public interest immunity is clearly established. The Local Court has an express power to make non-disclosure orders when evidence is being adduced and otherwise an implied power to make such orders and pseudonym orders if it is necessary to do so for the administration of justice: s130 (1); John Fairfax Publications Pty Ltd v District Court of NSW at [48]; Director of Public Prosecutions v Smith (1996) 86 A Crim R 308 where the Court (Gleeson CJ, Clarke and Sheller JA) said at 312:

“4 The use of pseudonyms, supported, where appropriate, by such rulings and directions as may be necessary to give practical effect to the immunity, is a common method of protecting the public interest here involved: see A-G v Leveller Magazine Ltd [1979] AC 440; (1979) 68 Cr App 343 for an example of the use of pseudonyms in a case where the public interest required non-disclosure of identity, see John Fairfax Publications Pty Ltd v Doe (1995) 37 NSWLR 81; 80 A Crim R 414 per Kirby P at 112-113; 444.

John Fairfax Group Pty Ltd v Local Court (NSW) (1991) 26 NSWLR 131; 59 A Crim R 68

A-G (NSW) v Mayas Pty Ltd (1988) 14 NSWLR 342 at 343; 36 A Crim R 345 at 346

John Fairfax & Sons v Police Tribunal (NSW) (1986) 5 NSWLR 465 at 472

17 The implied power extends to a situation where a witness reasonably fears for their safety: Witness v Marsden (2000) 49 NSWLR 429 where the Court (Mason P; Priestley and Heydon JA) said at [114]; [144]:

18 In R v Ngo (2003) 57 NSWLR 55 the Court of Criminal Appeal on an appeal from the trial judge’s ruling allowing witnesses to give evidence by the use of an audio visual link from a remote location, said of the expression “in the administration of justice” at [124]-[125]:

“[124] This means that we can now address the requirements of s 5B(3). Where a party opposes a direction being made, the court "must not make the direction unless the party making the application satisfies the court that it is in the interests of the administration of justice for the court to do so". This places an onus on the prosecution, which made the subject application, to so satisfy the court. The phrase, "in the interests of the administration of justice" is a broad one and not susceptible to precise definition. The particular context of the use of the phrase will provide assistance as to its content. In the subject context it must include the impact on the parties and the trial of making or not making the direction. This involves assessing the impact on the fairness of the trial for the accused. It also involves the issue of the fairness to the witnesses and to the Crown. There may be many things which can be said to be relevant to the interests in the administration of justice. Some will be interests of the accused, some of a witness, some of the Crown and some of the general community or the public interest in a fair and efficient system of criminal justice. However, what appears to be required is a balancing of these interests.

19 While the right to confront one’s accuser (which no doubt includes knowing their identity) is fundamental to a fair trial, that right again is also not an absolute one and the need to protect witnesses, the prosecution’s right to a fair trial and the public interest in the prosecution of serious offences must also be considered and balanced against any unfairness to an accused: R v Ngo at [118]-[119, [121]; Witness v Marsden (supra). In R v Wilkie, R v Burroughs, R v Mainprize [2005] NSWSC 794 Howie J in making audio visual link orders said of the concept of a fair trial at [54]:

20 The rationale for the need to protect witnesses by the use of pseudonyms as a category of public interest immunity was aptly said by Hunt CJ at CL in R v White-Cotterell (unreported, NSWSC, 29 October 1992) to be not for nor out of tenderness to the victim but to serve the important public interest in securing convictions in such cases, where experience has shown that complaints will not come forward unless this type of procedure is adopted. In that case the accused had sought a non-publication order for both he and the deceased where he claimed the deceased had subjected him to sexual abuse. His Honour observed that a pseudonym procedure was adopted in R v Savvas, Stevens & Peisley (1989) 43 A Crim R 331in relation to two Crown witnesses who had been granted immunity in order to protect them from reprisals. At page 3 His Honour said:

21 The accused sought to rely upon the decision of the House of Lords in R v Davis [2008] UKHL 36. In that case the addresses and personal details of the witnesses were withheld from the accused, their voices mechanically distorted to the hearing of the accused only and counsel for the appellant prohibited from asking any questions, which would reveal their identity. The House of Lords held that the use of anonymous witnesses denied the accused a fair trial in accordance with the common law and Article 6 (3) (d) of the European Convention on Human Rights. Further, the House of Lords held that a conviction should not be based solely, nor to a decisive extent, upon the evidence of anonymous witnesses. While that decision is persuasive, it needs to be considered on its own peculiar facts, particularly, that the identity of the witnesses was a relevant issue and that it was at trial. Lord Carswell proposed that the rule of open justice could be departed from in a clear case of necessity but the rest of the House did not accept that. Lord Mance, in a review of the position in International Criminal Courts made the following remarks at [92] concerning dissenting decisions of Sir Ninian Stephen in War Crimes trials:

“mere chance observer”

Decision

22 Sight should not be lost that these are committal proceedings, where evidence is ordinarily adduced by paper statements and not by oral examination of a witness. Where an order is made for adducing oral evidence, the cross-examination of a witness is not open ended but circumscribed by s91 (7) of the Criminal Procedure Act 1986 which provides that “the Magistrate must not allow the person to be cross-examined in respect of matters that were not the basis of the reasons for giving the direction, unless the Magistrate is satisfied that there are substantial reasons why, in the interests of justice, the person should be cross-examined in respect of those matters.”. The terms of the s 91 order (Exhibit 1) for all the witnesses to be called are limited to their “observations” of the incidents that occurred in a very short period of time (minutes rather than hours). There is nothing to suggest that the witnesses were more than mere chance observers and unknown to the accused. In these circumstances it is difficult to see how their identity is in any way substantially or materially relevant in the sense the accused will be denied a fair trial: Meissner (1994) 76 A Crim R 81. The DPP has agreed to provide an edited copy of each witness’s criminal record so that will be available to the accused. If at any stage of the proceedings a substantial or materially relevant unfairness arises concerning any particular witness then the court has the power set aside or vary its orders.

23 The issue then seems to be limited to that of open justice. It must be observed that the witnesses will still be seen in the courtroom either in person or on an audio visual screen. All that will be kept from the accused and the public will be their identity. In the circumstances of this matter any member of the public, armed with the knowledge why the order has been made, particularly that there is no perceivable unfairness would rightly conclude that the interests of justice are served by the making of the order.

24 The court does not need to find as a matter of fact… [Non-publication order applies to this part]. If …[Non-publication order applies to this part]…what is disclosed in the open and confidential affidavits is reasonable, then that is sufficient: Witness v Marsden (supra). Significant weight should be given to the evidence of the Commissioner given the stature and seniority of his position. On the evidence before the court in the Affidavits there is a substantial body of evidence that… [Non-publication order applies to this part]. When weighed against the absence of any material relevance that their identity is necessary to ensure the accused receive a fair trial, the balance clearly falls in favour of the orders sought. That is more so given there will be a delay of several months between the witness giving their evidence and being called at trial (if that eventuates). [Non-publication order applies to this part].

25 While there has been disclosure of some witnesses’ identity that does not mean there is no utility in granting the orders for those witnesses where there has been no disclosure or ameliorating the effect of what has been disclosed, particularly in light of the…[Non-publication order applies to this part].

26 Taking into account the relevant principles referred to above and the considerations under s130 (5) Evidence Act that have been addressed above, the court concludes that the public interest lies in making the orders to prevent potential harm and/or any irreparable damage that would prejudice the prosecution of these serious charges.

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Citations

Commissioner of Police v Hawi [2010] NSWLC 30

Cases Citing This Decision

0

Cases Cited

17

Statutory Material Cited

3

R v Mokbel (Ruling No 1) [2005] VSC 410

Woodroffe v National Crime Authority [1999] FCA 1128

Amalgamated Television Services Pty Ltd v Marsden [1999] NSWCA 97

CITATION:	Commissioner of Police V Hawi and Ors [2010] NSWLC 30
JURISDICTION:	Criminal
PARTIES:	Commissioner of Police Mahmoud Hawi and ors
FILE NUMBER:
PLACE OF HEARING:	Central Local Court and Sydney West trial Court Parramatta
DATE OF DECISION:	07/09/2010
MAGISTRATE:	Magistrate Favretto
CATCHWORDS:	CRIMINAL LAW – committal proceedings - public interest immunity - application for non-disclosure - non-publication and pseudonym orders for civilian witnesses
LEGISLATION CITED:	Criminal Procedure Act 1986, ss 56, 93 Evidence Act 1995, s 130 Local Court Rules 2009, r 3.7
CASES CITED:	Attorney-General for New South Wales v Stuart (1994) 34 NSWLR 667 Director of Public Prosecutions v Smith (1996) 86 A Crim R 308 Eastman v R (1997) 76 FCR 9 John Fairfax Publications Pty Ltd v District Court of NSW (2004) 61 NSWLR 344 John Fairfax Publications Pty Ltd v Ryde Local Court of NSW (2005) 62 NSWLR 512 National Crime Authority v Gould (1989) 90 ALR 489 R v Davis [2008] UKHL 36 R v Meissner (1994) 76 A Crim R 81R v Ngo (2003) 57 NSWLR 55 R v Savvas, Stevens & Peisley (1989) 43 A Crim R 331 R v White Cotterell (NSWSC, unreported, 29 October 1992) R v Wilkie, R v Burroughs, R v Mainprize [2005] NSWSC 794 State of New South Wales v Ryan (1998) 101 LGERA 246 Witness v Marsden (2000) 49 NSWLR 429 Yooyen, Tait and Poompiriyapinte v R (1991) 57 A Crim R 226 Young v Quin (1985) 59 ALR 225
TEXTS CITED:
REPRESENTATION:
ORDERS:	This is an edited publication excluding parts of the reasons subject to Non-publication orders.