R v Hamoui [No 2]

[2004] NSWSC 1053

CITATION:	R v Hamoui [No 2] [2004] NSWSC 1053
HEARING DATE(S):	18/10/04 - 22/10/04 25/10/04 - 29/10/04 1/11/04 - 5/11/04 8/11/04 - 11/11/04
JUDGMENT DATE:	11 November 2004
JURISDICTION:	Common Law Division Criminal List
JUDGMENT OF:	Kirby J
DECISION:	The evidence obtained in consequence of the forensic procedure should be admitted.
CATCHWORDS:	Criminal Practice & Procedure - murder trial - application to exclude evidence under s138 Evidence Act 1995 - application for Detention Warrant - whether contained false statements - whether impropriety or illegality.
LEGISLATION CITED:	Crimes Act 1900 Forensic Procedure Act 2000 Evidence Act 1995
CASES CITED:	R v Hamoui [No 1] (unreported, 11.11.04)
PARTIES :	Regina Abdul Razzak Hamoui
FILE NUMBER(S):	SC 70076/03
COUNSEL:	T R Bailey (Crown) M Ierace SC (Accused)
SOLICITORS:	R Lewis (DPP sol) C Taylor (Hardin Law)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
CRIMINAL LIST

JUSTICE DAVID KIRBY

Thursday 11 November 2004

70076/03 REGINA v ABDUL RAZZAK HAMOUI

JUDGMENT [No 2] - Application to exclude evidence under s138 Evidence Act 1995.

1 KIRBY J: On the morning of Thursday 28 June 2001 the body of Julie Haklane was found. The officer in charge of the investigation was Detective Senior Constable Garth Hazell. Detective Hazell attended a briefing by Detective Inspector Henderson and other senior officers at Granville. The briefing provided information relating to the disappearance of Julie Haklane the previous Monday, and the interview with her boyfriend, Abdul Razzak Hamoui, the next day.

2 The police determined that they would apply for a Search Warrant of Mr Hamoui's home and a Detention Warrant (under Pt10A Crimes Act 1900) to further interview Mr Hamoui.

3 At 8.00 pm Mr Hamoui was brought by police vehicle to the Fairfield Police Station. In accordance with the requirements of Pt10A, he was given into the custody of the Custody Manager, Senior Constable Mammone. An explanatory memorandum concerning his rights under Pt10A was provided. A Custody Management Record was compiled (Exhibit 2 on the Voir Dire).

4 Detective Hazell delegated to Detective Hinds the task of seeking a Detention Warrant from an after hours Magistrate. Detective Hinds had also been at the morning briefing of Inspector Henderson. He had, in addition, spoken to Inspector Henderson, Detective Sergeant Jacobs, and Detective Senior Constable Dorrough, who had each become involved in aspects of the investigation.

5 Between 8.45 pm and 9.01 pm Detective Hinds completed the application for the Detention Warrant and the affidavit in support. Mr Hamoui was invited by Detective Hazell to nominate a support person. The invitation was extended, not for reasons of ethnicity or language difficulties, but because Detective Hazell wished to interview Mr Hamoui in respect of a serious matter. Although Mr Hamoui spoke good English, Detective Hazell believed it appropriate that he should have a support person if he wished. Mr Hamoui nominated his sister, Dania. Dania came to the police station. The Warrant was not granted, however, until 10.42 pm. Questioning in fact began at 11.45 pm. It was clear earlier in the evening that the interview may go past midnight. Mr Hamoui's sister said that she could not be present after midnight, since she was required to work. Mr Hamoui was asked to nominate an alternative support person. He nominated his cousin, Fawaz Hamawi. Arrangements were made for Mr Hamawi to come to the police station. He was present throughout the interview.

6 At the conclusion of the interview Mr Hamoui was asked to consent to a forensic procedure. He was given an explanation. He consented to that procedure. He signed the requisite form. A person authorised under the Forensic Procedure Act 2000 took a buccal swab for DNA purposes.

7 Counsel for the accused asserted that the application by Detective Hinds to the Magistrate was false in three respects which were material. It was not suggested that the falsity had come to the notice of Mr Hamoui, or influenced the answers he provided during the course of the interview. Nor was it suggested that the alleged falsity had influenced Mr Hamoui's consent to the forensic procedure. The falsity, nonetheless, was said to enliven the discretion under s138(1) of the Evidence Act to exclude evidence obtained improperly or in contravention of an Australian law.

The affidavit in respect of the Detention Warrant.

8 The affidavit prepared by Detective Senior Constable Hinds was in the format required. It identified the offence leading to Mr Hamoui's arrest as "murder". The evidence for his arrest was stated in these terms:

"3. The evidence on which the detained person was arrested is as follows:
SUSPECT IN THE SUSPICIOUS DEATH OF HIS EX-GIRLFRIEND JULIE HAKLANE. LAST KNOWN PERSON TO CONTACT VICTIM PRIOR TO HER DISAPPEARANCE ON THE 25/6/01. THE SUSPECT HAS PREVIOUSLY ABDUCTED THE DECEASED IN JANUARY, 2001 AT GUNPOINT AND ASSAULTED HER TO WHICH HE WAS CHARGED AND THE MATTER IS BEFORE THE COURTS."

9 That description was said to be false. As a consequence of Ms Haklane amending her statement, and withdrawing her allegations, the charges of abduction and malicious wounding were withdrawn. The only charges before the Courts related to the firearm and the prohibited weapons found at the home of the accused. This was the first matter said to be false.

10 The second matter related to the proposed forensic procedure. The affidavit of Detective Hinds included the following:

"6. The grounds on which I have formed the belief that the investigation period should be extended beyond 4 hours are as follows:

SERIOUSNESS OF OFFENCE, TO CONDUCT ERISP INTERVIEW WITH THE SUSPECT. CONDUCT FORENSIC PROCEDURE.
7. The detained person has co-operated in the investigation to date as follows:
HAS AGREED TO PARTICIPATE IN ERISP INTERVIEW. HAS AGREED TO FORENSIC PROCEDURE."

11 There was no question that at the conclusion of the interview Mr Hamoui was asked to provide his consent to a forensic procedure and did so. However it was said to be false to assert that he had given his consent before the interview at 8.44 pm, when first taken into custody.

12 The third matter concerned the support person. The application for the warrant included the following:

"13. DANIA HAMOUI, SUPPORT PERSON of detained person, of BONNYRIGG, aged 19 years is present as a support person.
14. The following precautions have been taken in respect of the detained person because of his vulnerability:
DANIA HAMOUI CONTACTED AND WILL BE PRESENT DURING INTERVIEW."

13 Complaint is made that, once it became apparent that Ms Dania Hamoui could not remain after midnight, the Magistrate should have been told of the new arrangements, and yet was not told.

14 The third aspect may be dismissed at once. Mr Hamoui nominated a replacement suitable to him. That person was present. The application was accurate at the time it was submitted. It could neither be said to be improper nor a breach of the law not to inform the Magistrate of the new arrangement. This aspect could not possibly give rise to an issue under s138.

The alleged falsity of paragraph 3.

15 Detective Hinds said that he assumed that he had been provided with the information in paragraph 3 by some other officer, presumably the person in charge of the investigation (Detective Hazell).

16 Detective Hazell said he did not see the application for the warrant before it was submitted. He certainly spoke to Detective Hinds. Three years on, he could not recall his conversation. He would not agree that paragraph 3, as expressed, was grossly misleading. It was ambiguous. He said it would have been better had the charges been specified. He also said that he certainly would not have provided Detective Hinds with information knowing it to be false (T89).

17 I accept that paragraph 3 of the application gives the impression that the abduction charge was before the Court. Since the charge had been withdrawn, that paragraph was misleading. However, there is, in my view, no basis for suggesting, or even suspecting, that either Detective Hinds (to the Magistrate) or Detective Hazell (to Detective Hinds) knowingly provided information that was false or misleading. It was an offence to prove an Authorised Justice with information that a person knows to be false or misleading in a material particular (s356K(1) Crimes Act).

18 Here, the facts surrounding the abduction were not straightforward (cf R v Hamoui [No 1] (unreported, 11 November 2004). The charges, including abduction, were on foot for almost four months before they were withdrawn and dismissed. Serious firearms offences remained before the Court. The complete picture, including the withdrawal, was serious. Had it been presented to the Magistrate, it is unlikely to have made a difference to the duty he was required to perform.

19 However that may be, I do not believe, as a matter of probability, that the misleading nature of paragraph 3 involved either impropriety on the part of the police or a breach of the law.

The alleged falsity of paragraphs 6 and 7.

20 There is no question that Mr Hamoui formally provided his authority to the forensic procedure after the interview, signing the requisite form. The only issue is whether he informally did so before Detective Hinds completed the application for the warrant, or that Detective Hinds believed that he had done so.

21 Detective Hinds was asked to provide the basis for his assertion in the application for the warrant that Mr Hamoui "has agreed to forensic procedure". He said this: (T77)

"Q. ... What was your source of information for that?
A. Well, he agreed to be interviewed at the time and I was informed he agreed to the forensic procedure, he was co-operating at that time.
Q. Who informed you of that?
A. I couldn't remember, it was three and a half years ago.
Q. Well clearly it was someone who was speaking to the accused?
A. Yes. Had to have been.
Q. Matter of commonsense because if he has agreed?
A. Sometimes the custody manager asks them, sometimes the officer in charge."

22 Detective Hinds agreed that it would be unusual for the custody manager, who had specific responsibilities under the legislation, to provide that information. More likely, therefore, it came from the officer in charge, Detective Hazell, although it should be noted that Detective Hinds did speak to a number of senior police. Detective Hazell could not recall having a conversation with the accused in which he raised the need for a forensic procedure before the interview. His first recollection of the accused having consented was after the interview (T71). He could not remember what he said to Detective Hinds when he gave him the task of seeking the Detention Warrant.

23 I accept that Detective Hazell did not knowingly convey to Detective Hinds false information. The application recited the need for a further ERISP interview and a forensic procedure. It was not challenged that Mr Hamoui had informally consented to the ERISP interview. In the context of a murder investigation, that would ordinarily have been enough to obtain the warrant. There was no apparent motive for falsely asserting that, in addition, Mr Hamoui had consented to the forensic procedure. It was necessary to obtain the Detention Warrant with despatch. Obviously it was important that the application should be accurate. However, inevitably there were opportunities for miscommunication. Mr Hamoui had been taken into custody on the Tuesday and interviewed by police. He had been co-operative. When again taken into custody on the Thursday evening, he had again been co-operative. It would only need Detective Hazell to mention in the same breath that it was intended to obtain a buccal swab and that Mr Hamoui was co-operating, for the impression to have been created that the accused had already consented. But whether or not it happened in that way, I believe, as a matter of probability, that either Mr Hamoui informally consented to a forensic procedure (and Detective Hazell has since forgotten) or, more likely, there was some miscommunication as a result of which Detective Hinds had the impression that Mr Hamoui had consented. Accordingly, I believe that there was no impropriety or breach of the law. Again, there is no occasion to undertake the weighing process contemplated by s138.

24 The ERISP on 26 June 2001 and the evidence obtained in consequence of that forensic procedure should be admitted.

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Last Modified: 07/16/2007