R v Hawat (No 1)

[2019] NSWSC 1583

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	R v Hawat (No 1) [2019] NSWSC 1583
Hearing dates:	8, 12 and 14 November 2019
Date of orders:	14 November 2019
Decision date:	19 November 2019
Jurisdiction:	Common Law
Before:	N Adams J
Decision:	The application by the Crown for material to be released under s 45(5) of the Crime Commission Act is refused.
Catchwords:	CRIME – evidence – murder – joint criminal enterprise – accessory before the fact – application to release evidence given before Crime Commission – s 45(4) and (5) Crime Commission Act 2012 (NSW) –whether disclosure in the interests of justice – factors weighing for and against disclosure – public interest immunity
Legislation Cited:	Crime Commission Act 2012 (NSW), s 21, s 24, s 25, s 27, s 39, s 45
Cases Cited:	The application by the Crown for material to be released under s 45(5) of the Crime Commission Act is refused.
Category:	Procedural and other rulings
Parties:	Regina (Crown) Osama Hawat (Accused) New South Wales Crime Commission (Applicant)
Representation:	Counsel: Mr T McCarthy (Crown) Mr J Kelly SC (Accused) Mr P Bodor QC (Applicant) Mr R Bhalla (Applicant)   Solicitors: Solicitor for Director Public Prosecutions (Crown) Dib & Associates Lawyers (Accused) Crown Solicitor’s Office (Applicant)
File Number(s):	2017/194590

Judgment

Background

1. On 29 June 2017, Osama Hawat was charged with the murder of Hamad Assaad. On 7 December 2018, his matter was listed for a five week trial in this Court commencing on 11 November 2019. The indictment is framed in these terms:

“On December 2018, the Director of Public Prosecutions on behalf of Her Majesty charges that

OSAMA HAWAT

on 25 October 2016, at Georges Hall in the State of New South Wales, did murder Hamad ASSAAD.

S 18(1)(a) Crimes Act 1900 Law part code 2

AND the Director of Public Prosecution FURTHER CHARGES in the ALTERNATIVE to count 1 that

Whereas on 25 October 2016, at Georges Hall in the State of New South Wales, unknown persons did murder Hamad ASSAAD,

Before the said serious indictable offence was committed, OSAMA HAWAT did assist the unknown persons to commit the said serious indictable offence.

S18(1)(a) Crimes Act 1900 Law part code 2

S 346 Crimes Act 1900 Law part code 53065”

2. It is not suggested that the accused was one of the shooters. As the summary of the Crown case statement below reveals, the Crown’s primary case is that he was part of a joint criminal enterprise with the two unidentified shooters to murder the deceased with his primary role being surveillance. The Crown brings an alternate case that the accused was an accessory before the fact to the shooting by the two unknown persons.

3. On 7 November 2019, two working days before the trial was due to commence, the Office of the Director of Public Prosecutions (“ODPP”) filed two notices of motion. The first notice of motion sought orders under s 45(4) and s 45(5) of the Crime Commission Act 2012 (NSW). Specifically, it requested that transcripts of compulsorily obtained evidence given by five specified witnesses to the Crime Commission be provided to the Supreme Court (s 45(4)) and then, after consideration of them, that the Court order release of them to the ODPP and the accused (s 45(4)). The evidence was said to pertain to the circumstances of the shooting with which the accused is charged.

4. The second notice of motion sought that the trial date of 11 November be adjourned on account of the orders sought in the first notice of motion. Both motions were supported by affidavits from the ODPP instructing solicitor.

5. The motions were listed for hearing before me on Friday, 8 November 2019. Before setting out what happened on that day, it is necessary to first set out the Crown case as summarised from the Crown case statement (attached to the Notice of Prosecution case filed on 1 October 2019) as well as the legislation upon which the ODPP brings these applications.

The Crown case

6. The Crown case is that about 9:20am on 25 October 2016, Mr Hamad Assaad was in the driver’s seat of a vehicle parked in the driveway of 51 Sturt Avenue, Georges Hall (his residential address). Two unidentified men ran up to the vehicle and fired 22 rounds at him. Mr Assad died outside his residence.

7. The accused is a self-employed plumber. His father is the registered owner of a white Toyota Hiace van. The van was used by the accused for his business. There is evidence that he did not allow any other person to drive the van. The van had the business’ name on the side, which was “Flow Master”. Additionally, the accused had a black Audi A4 registered in his name, although the accused’s wife (Ms Amany Merhi) told police that she was the sole user of this vehicle.

8. The Crown case is that the accused’s involvement in the murder is that he was present in a nearby street at the time of the murder and carried out surveillance of the deceased’s residential address on four occasions prior to the murder.

The surveillance

9. On the first occasion, on or around 9:50am on 7 October 2016, a white Toyota Hiace van bearing “Flow Master” decals was driven west past 32 Sturt Avenue, which was on the opposite side of the road and slightly west of the deceased’s residence. About 40 seconds later, it was driven past in the opposite direction.

10. On 8:27 am on 8 October 2016, a white Toyota Hiace van marked with “Flow Master” signage was driven past the same address. The driver then parked the vehicle and was situated opposite to and west of the deceased’s residence. No person entered or exited the van for a period of an hour and eleven minutes.

11. On 10 October 2016, a black Audi A4 stopped outside the deceased’s residence at around 8:52am. It left at 9:18am. Later, at 9:28am, a police vehicle identified an Audi A4 stopped in Namoi Lane, which provided rear access to the deceased’s residence. At this time, the accused’s wife was babysitting her nephew. Additionally, footage of the Audi A4 appears to depict a male person wearing a short sleeved shirt. The accused’s wife is not known to appear in public with her arms uncovered. The accused’s van was in Aberdeen that day but his phone records show that he was not in Aberdeen.

12. On 11 October 2016, at about 8am, a white Toyota Hiace van travelled past 32 Sturt Avenue, turned and drove past again. The van did not have decals. The Crown case is that this is the accused’s van, due to the positioning of plumbing pipes and flags on the back of the pipes.

13. On 22 October 2016, at about 9:06pm, a white Toyota Hiace van travelled past the deceased’s residence. It parked and then travelled past the residence. Five minutes later, a black BMW believed to be linked to one of the suspected shooters (Kemel Barakat) drove past the deceased’s residence.

14. About one minute later, the van returned and parked so that it was east of the deceased’s residence, with an elevated view of the location. The van then travelled west past the deceased’s residence, before travelling back in the opposite direction. The van passed the black BMW. The black BMW then travelled west past the deceased’s residence before travelling back in the opposite direction and then onto Eldon Avenue. About a minute later, the van also travelled turned onto Eldon Avenue.

15. On the day of the murder of the deceased, 25 October 2016, a white Toyota Hiace van travelled past the deceased’s residence before travelling onto an adjoining road (Surrey Avenue) and parking. At around 9:06am, a stolen Audi SQ5, bearing stolen plates, parked north of the deceased’s residence. About 9:15am, the van was driven past the Audi SQ5. It then travelled past the deceased’s residence. The accused’s van was then parked again on Surrey Avenue. At about 9:20am the Audi SQ5 travelled towards the deceased’s residence and stopped diagonally across the bottom of the deceased’s driveway. The deceased was shot and killed. The Audi SQ5 left the scene and approximately 2-3 minutes later the van left in the same direction.

16. About 1:50am on 28 October 2016, the stolen Audi SQ5 was driven to a park and set alight.

Changing the appearance of the van

17. A number of changes were observed to the accused’s van after 25 October. Before 26 October, the orange flags were removed from the van. In late October and November the front bull bar was removed and a missing hubcap was replaced. The registration of the vehicle was changed on 16 November 2016. In the six days after this, the pipes on the left hand side of the van were removed.

Alleged lies

18. The accused was arrested on 29 June 2017 and was shown CCTV stills of his van. He denied that he ever had a wheel hub missing. He also denied that he had two pipes on his van or that he had front and back step bars.

19. The accused provided a number of reasons why the van (if it was his) would be near the deceased’s residence. He stated that he had a business acquaintance who resided in Sturt Avenue. Subsequent inquiries revealed that this acquaintance does not appear to have been in Sturt Avenue at the time of the murder. Nor does this explanation accord with the position that the accused’s vehicle was parked in. The accused also told police that he had a friend in Talinga Avenue (a nearby street). During a lawfully intercepted conversation on Tuesday 28 March 2017 with his wife, she told him that a person called “Halwani” lived in the street that “loops around” (Talinga Ave). The accused also said that he was visiting his father-in-law at his father-in-law’s place of work, but his father-in-law was not at work that day as he was working a night shift.

Admissions

20. The accused also made a number of statements relied upon as admissions. These statements were recorded by police via lawful intercepts. On 28 March 2017, the accused told his wife, “You know that Hamad, at Georges Hall”, “I drove in the street, I drove in the street but nothing else”, “I drove in, don’t think they know”, “It had to be done, straight out” and “Fuck em, what have they got? They got nothing. That’s what I mean”.

21. He then said, “In the morning I was there and I drove in the street.” He explained that he was “looking out for my boy” and “helping out, that’s all it was.” He also said that, “But now, not they got my thing cuz, my van” and “I done it for a brother...straight out. At the end of the day, I’m helping my brother, my brother, you know what I mean?”

22. On 15 April 2017, he stated in a conversation with an unknown male:

“UM:   They haven’t spoken to ya yet?

OH:   Nah. My dad told me…van….my van…They want…They told him they…

…

UM:   Do they think that Rock…?

OH:   Nah.

UM:   They think Mejid?

OH:   They know me, hallas, straight out.

UM:   Deuce’s mate?

OH:   Yeah, but…Wally, four, there was four.

UM:   Yeah, Deuce’s mate - - -

OH:   And me. Me, Mejid, Rock.

UM:   Who the fuck’s telling ‘em?

OH:   I don’t know cuz, I don’t know cuz, it’s stressing me out cuz…Rock.

…

OH:   Yeah, nah, yeah. Brow, I just don’t know they know the full. How could they know - - -

…

OH:   - - - I was there, in the van? That’s why - - -

UM:   That’s why I’m getting worried about Mejid, ‘cause I think you (tsk sound).”

23. However, when speaking with Detective Ede on 17 May 2017, the accused denied knowing anything about the murder, stating that “Nah I don’t remember it.” On the same day he told his wife to stop using her current phone and appeared to suggest that a laptop should be destroyed. During the search warrant conducted on 29 June 2017, the accused’s wife took the accused’s mobile phone and dropped it in the toilet.

24. The Crown case statement indicates that Kemel Barakat (‘Blackie’) and Ahmad Ahmad (‘Rock’) are suspected of being in the stolen Audi SQ5 at the time of the murder, either as a shooter or as the driver. Barakat was murdered on 10 March 2017. Ahmad is currently in custody on unrelated matters and has not been charged in relation to this offence.”

The Crime Commission Act 2012 (NSW)

25. The Crime Commission has investigative powers not available to regular New South Wales Police officers. By virtue of ss 24, 25, 27 and 39 of the Crime Commission Act, the Commissioner is able to summon a person secretly, examine them in circumstances where their right to silence has been expressly abrogated and prosecute them should they give misleading information to the Crime Commission. The hearings are held in private but an order can be made that police officers can view the proceedings from a separate room (s 21).

26. In exchange for this abrogation of their legal rights, the Crime Commission cannot use any material given by such a witness in proceedings against them (see s 39) and a non publication order is usually made over the compelled testimony. This is something that is explained to each witness before an examination commences.

27. Section 39 of the Crime Commission Act is headed “Privilege concerning answers and documents” and is in these terms:

39   Privilege concerning answers and documents

(1)  A witness summoned to attend or appearing before the Commission at a hearing is not (except as provided by section 40) excused from answering any question or producing any document or thing on the ground that the answer or production may incriminate or tend to incriminate the witness, or on any other ground of privilege, or on the ground of a duty of secrecy or other restriction on disclosure, or on any other ground.

(2)  An answer made, or document or thing produced, by a witness at a hearing before the Commission is not (except as otherwise provided in this section) admissible in evidence against the person in any civil or criminal proceedings (other than a proceeding for the falsity of evidence given by the witness) or in any disciplinary proceedings.

(3)  Nothing in this section makes inadmissible:

(a)  any answer, document or thing in proceedings for an offence against this Act or in proceedings for contempt under this Act, or

(b)  any answer, document or thing in any civil or criminal proceedings or in any disciplinary proceedings if the witness does not object to giving the answer or producing the document or other thing irrespective of the provisions of subsection (1), or

(c)  any document in any civil proceedings for or in respect of any right or liability conferred or imposed by the document, or

(d)  any answer made, or document or thing produced, by a corporation at a hearing before the Commission.

(4)  If:

(a)  an Australian legal practitioner or other person is required to answer a question or produce a document or thing at a hearing before the Commission, and

(b)  the answer to the question would disclose, or the document or thing contains, a privileged communication passing between the legal practitioner (in his or her capacity as a legal practitioner) and a person (the client),

the legal practitioner or client is entitled to refuse to comply with the requirement, unless the privilege is waived by a person having authority to do so.

(5)  However, the Australian legal practitioner must, if so required by the executive officer presiding at the hearing, furnish to the Commission the name and address of the client to whom or by whom the privileged communication was made.

(6)  The executive officer presiding at the hearing may declare that all or any classes of answers given by a witness or that all or any classes of documents or other things produced by a witness will be regarded as having been given or produced on objection by the witness, and there is accordingly no need for the witness to make an objection in respect of each such answer, document or other thing.

28. Section 45 of the Crime Commission Act is headed “Publication or disclosure of evidence” and in these terms:

45   Publication or disclosure of evidence

(1)  The Commission may direct that:

(a)  any evidence given before it, or

(b)  the contents of any document, or a description of any thing, produced to the Commission or seized under a search warrant, or

(c)  any information that might enable a person who has given or may be about to give evidence before the Commission to be identified or located, or

(d)  the fact that any person has given or may be about to give evidence at a hearing,

must not be published, or must not be published except in such manner, and to such persons, as the Commission specifies.

(2)  The Commission must give such a direction if the failure to do so might prejudice the safety or reputation of a person or prejudice the fair trial of a person who has

been or may be charged with an offence.

(3)  A person must not make a publication in contravention of a direction given under this section.

Maximum penalty: 100 penalty units or imprisonment for 2 years, or both.

(4)  If:

(a)  a person has been charged with an offence before a court of the State, and

(b)  the court considers that it may be desirable in the interests of justice that particular evidence given before the Commission in relation to which the Commission has given a direction under this section be made available to the person or to a legal practitioner representing the person and to the prosecutor,

the court may give to the Commission a certificate to that effect and, if the court does so, the Commission must make the evidence available to the court.

(5)  If:

(a)  the Commission makes evidence available to a court in accordance with subsection (4), and

(b)  the court, after examining the evidence, is satisfied that the interests of justice so require,

the court may make the evidence available to the person charged with the offence concerned or to an Australian legal practitioner representing the person and to the prosecutor.

(6) This section has effect subject to section 45A.

(7)  In this section:

publish includes:

(a)  disclose to a person, and

(b)  in relation to evidence or a record of evidence—disclose any information directly contained in or implied from that evidence or record, except where the information could be obtained elsewhere.

29. Thus, it can be seen that under s 45(4), the Supreme Court may provide the Crime Commission with a certificate, if it considers that it “may be desirable in the interests of justice” that the particular evidence be provided to the parties. If such a certificate is granted then the second stage of the application set out in s 45(5) of the Crime Commission Act requires the Court to examine all of the evidence and then consider whether it is “satisfied that the interests of justice so require” that it be made available to, in this case, the ODPP and the accused.

30. The tests in s 45(4) and (5) were considered by Hamill J in R v Qaumi & Ors (No 11) [2016] NSWSC 252 (“Quami (No 11)”). The principles derived from that decision are considered further below.

The hearing of the notices of motion

31. At the hearing of the motions on 8 November 2019, Mr Tony McCarthy appeared as Crown Prosecutor (hereinafter the Crown), Mr Peter Bodor QC, New South Wales Deputy Crime Commissioner, appeared for the New South Wales Crime Commission and Mr John Kelly from the Victorian Bar appeared for Mr Hawat. Mr Hawat appeared by way of audio-visual link. It is to be noted that he has been in custody since his arrest on 29 June 2017.

32. The Crown moved on its notices of motion and submissions were made by all counsel.

33. The explanation for the lateness of this application was said to be that on 30 August 2019 the Crime Commission disclosed to the ODPP that there might be evidence before the Crime Commission relevant to the accused’s trial. It was not until 4 November 2019 that a formal request for the material was made by the ODPP.

34. On 6 November 2019, Mr Bodor varied the non-publication orders in relation to the five specified witnesses, the dates of their hearings and the general nature of the witnesses’ evidence. He also varied non-publication orders so the names of the witnesses and the dates of their hearings could be disclosed. At the hearing, Mr Bodor indicated that varying these orders is usually a two stage process but he made all of these necessary specifications at the same time due to the urgency of the matter.

31. On 7 November 2019, the ODPP wrote to the accused’s solicitor setting out this information. Although the witnesses’ names were provided to the accused, I am satisfied that there is no need to publish them in this judgment. The particular information provided to the accused was as follows:

Name of witness	Date of hearing(s)	General nature of evidence given
Witness 1	25/10/2017 Resumed 30/11/2017	Regarding, inter alia, the attendance by persons of interest in the investigation of the murder of Hamad Assaad at Cafe on the Boulevard in Punchbowl around the time of the murder.
Witness 2	27/11/2017	Regarding, inter alia, the attendance by persons of interest in the investigation of the murder of Hamad Assaad at Cafe on the Boulevard in Punchbowl around the time of the murder.
Witness 3	24/01/2018	Regarding, inter alia, the nature of his association with persons of interest in the investigation of the murder of Hamad Assaad, and the attendance of those persons at their residence in the period around the murder.
Witness 4	09/02/2018 Resumed 01/03/2018	Regarding, inter alia, the nature of his association with persons of interest in the investigation of the murder of Hamad Assaad, and the attendance of those.
Witness 5	04/07/2018 Resumed 09/08/2018 and 20/08/2018	Regarding his associations with persons of interest, including Osama Hawat, and conversations with persons of interest concerning Hamad Assaad's murder. He recounted a conversation some time after the murder in which Osama Hawat requested a new hub cap for his work van.

The s 45(4) application

36. It was common ground that it was only the first stage of the ODPP’s application that could be dealt with on 8 November 2019; that is, the question of whether I should certify that the Crime Commission provide the relevant evidence to me for my consideration.

37. The Crown submitted that the test under s 45(4)(b) had been satisfied because the anticipated evidence of the witnesses connects or potentially connects the accused to people in possession of the stolen Audi used in the commission of the offence. The Crown also submitted that the evidence could demonstrate association between the accused and the two people that the Crown suspected actually carried out the shooting. The Crown further indicated that the Crime Commission evidence could demonstrate motive and that the murder was a revenge killing for the death of one of the suspect’s brothers.

38. During his submissions it became apparent that the Crown was alluding to factual matters I was unaware of as they were not contained in the Crown case statement I have summarised above. When I asked him to indicate where in the Crown statement the various matters he was submitting on were, it was conceded that they were not before me. I shall return to this aspect of the application later in my reasons.

39. Additionally, the Crown indicated that the reason for delay in putting on the notices of motion was that after the Crime Commission notified the ODPP it had relevant material on 30 August, a report went to the Director's Office on 30 September seeking advice on whether or not to request disclosure of the Crime Commission material. The decision on this issue for consideration was released on 30 October and the reply to the Crime Commission was sent on 4 November.

40. Mr Bodor from the Crime Commission indicated that, consistent with its duty of disclosure, he was “quite content” for the transcripts to come to the Court for assessment and for the Court to consider them under s 45(4). However, Mr Bodor indicated that the Crime Commission had identified some public interest immunity issues and would have to instruct the Crown Solicitor’s office in relation to these should there be any order to release them under s 45(5).

41. Mr Kelly indicated that the accused opposed the application for disclosure under s 45(4). He submitted that the test imposed by the section was not met, notwithstanding the fact that there is a low bar. This was because of the timing of the application, the volume of the material and the risk of the accused of his trial being delayed. It was submitted that these were all relevant discretionary considerations for the purposes of s 45(4). Furthermore, Mr Kelly’s position was that if the material was to be released, the accused needs to be in possession of it before any pre-trial issues were argued. This was because of the potential for the case against the accused to change. He was also concerned about a potential co-accused that has not yet been charged.

42. After considering these submissions and the Crown case statement I was satisfied that under s 45(4) of the Crime Commission Act the evidence should be made available to me. I indicated at the time that I would my reasons for making that order at a further date. Those reasons are as follows.

Reasons for making the s 45(4) order on a November 2019

43. The test in s 45(4) is not a stringent one. The Court will issue a certificate if satisfied that it may be desirable in the interests of justice the requested material be made available to, in this case, the ODPP who makes the application and the accused.

44. In circumstances where the NSW Crime Commission did not oppose the material being made available to the court at this first stage of the inquiry the only question was whether the accused’s opposition to the material being made available to the court militated against it even being released to me for consideration. The nub of the opposition was the potential delay to the trial date should the material be made available to the parties under s 45(5). I accept, as a matter of general principle, that delay could be a discretionary factor militating against the court granting a certificate under s 45(4) in some cases; in each case it is a question of weighing all such factors against each other.

45. I was satisfied that in this matter the discretionary factors identified by the accused as weighing against the issue of a certificate would be more pertinent at the s 45(5) stage of the inquiry.

46. I also had regard to the fact that there was always the possibility that the material may disclose something of an exculpatory nature.

47. Based on the brief outline of the subject areas of the evidence identified by the Crime Commission as set out above at [35], I was satisfied that the statutory test was met in this case as it may be desirable in the interests of justice that the requested material be made available to the parties at a later stage.

Section 45(5) Application

48. After I made the order under s 45(4), the Crown accepted that a difficulty with determining the s 45(5) application would be that, at this stage, I did not have access to the Crown brief and it was apparent from the Crown’s submissions that the significance of the compelled testimony was not able to be gleaned from the Crown case statement. The Crown undertook to provide written submissions and further material to assist in my assessment of the compelled testimony.

49. I indicated to the parties that I would approach the statutory task under s 45(5) in two stages. I would examine the material and form a preliminary view as to whether the relevant factors militate in favour of disclosure or non-disclosure. Depending on what conclusion I drew about the probative value of the transcripts, it would either be necessary to contact the representatives of the five witnesses involved to give them an opportunity to be heard or it would not. All parties accepted that this was an appropriate way to proceed with the matter.

50. At the conclusion of the hearing on 8 November 2019, I made a number of orders including the following:

1. The Crown was to file and serve any submissions it relies upon in relation to an application under s 45(5) of the Crime Commission Act by 5pm, 8 November 2019.

2. The matter was listed for further mention on Thursday, 14 November 2019 for two issues to be heard: first, to ascertain whether there is any public interest immunity claim made in relation to the relevant transcripts by the Crime Commission; and second, whether there is a sufficient basis under s 45(5) to contact the five witnesses for them to be heard on the s 45(5) application.

3. The parties are to consider and advise the Court no later than 5pm on Wednesday, 13 November 2019 who should be present or excluded from the hearing on 14 November 2019, with such hearing to be heard in a closed court.

4. The material subject to the s 45(4) certificate I issued was to be delivered to my chambers no later than 5pm today, 8 November 2019.

Events after 8 November 2019

51. At approximately 4pm on Friday 8 November 2019, two folders of material comprising approximately 1,200 pages were delivered to my chambers from the Crime Commission.

52. Shortly after 5pm that same day, two further folders were produced from the ODPP. These contained documents from the Crown brief that were said to be relevant to the documents sought from the Crime Commission.

53. I read the relevant Crime Commission documents over the weekend. It became clear to me that clarification was required in relation to some of the produced material. For that reason contact was made with the Crime Commission and the matter was listed for further hearing on Tuesday, 12 November 2019. I excluded both the Crown and Mr Kelly from this hearing, as its purpose was to seek clarification of the contents of the material produced pursuant to the s 45(4) certificate.

54. I do not consider it necessary or appropriate to summarise here what occurred at that hearing. It is sufficient to note that Mr Bodor was of assistance in clarifying the matters that had been unclear to me and identifying the potential public interest immunity issues.

Submissions on the s 45(4) application

55. In addition to supplying two folders of additional evidence, the Crown also provided written submissions as to the potential relevance of this material to the Crown case.

56. The Crown relied upon the descriptions of the subject areas these witnesses were questioned on (set out above at [35], as provided by the Crime Commission. It was submitted that evidence of the attendance by persons of interest at Café on the Boulevarde in Punchbowl around the time of Mr Assaad’s murder was relevant both as evidence of association between the accused and the suspected shooters and reliance was placed on the fact that there is evidence in the Crown brief that the accused telephoned that Café on the day of the murder. Evidence about this was given by witnesses 1 and 2.

57. From the material provided from the Crime Commission, the Crown submitted, in the limited capacity that he could, that it would appear that witness gave evidence about the accused’s association with the two suspected shooters. Witness 3 also lived at a residence where police suspect that the stolen Audi used in the commission of the murder was stored.

58. The Crown further submitted that, based on the Crime Commission evidence, the witness 4 was the girlfriend of one of the suspected shooters and lived at the same residence. Witness 4’s evidence would appear to be about the nature of the accused’s association with persons of interest in the murder and the attendance of those persons at the residence.

59. Finally, the Crown noted that witness 5 gave evidence to the Crime Commission about his associations with persons of interest in the murder of the deceased as well as his conversations with persons of interest. In particular, he gave evidence about the accused asking him for a new hubcap for his work van.

60. The Crown submitted that the case against the accused is largely circumstantial. It relies upon the accused changing his van, the admissions and the accused’s apparent surveillance of the deceased’s property. It was submitted that “[t]he Crown has no evidence of direct communication between the accused and those people in the stolen Audi SQ5 driven by the people who carried out the murder on 25 October 2016”.

61. Therefore, the Crown submits that evidence connecting the accused with this stolen vehicle, evidence of any conversations between the accused and persons of interest and evidence associating the accused with persons on the day of the murder has the potential for strengthening the Crown case considerably.

62. The Crown conceded that the Crime Commission evidence had come to light at a late stage and has the potential to delay the trial. The Crown nonetheless submits that the last of the Crime Commission hearings occurred in August 2019 and relatively late notice was given to the ODPP.

63. The Crown submitted that it could not know the content of the evidence given at the Crime Commission. However, it submitted that it appeared to the Crown that at least some of the evidence being sought was “central to the facts and allegations in this case” and therefore should be released: Hamill J in Quami(No 11) at [30]).

Further defence submissions

64. At about 5 pm on Wednesday, 13 November 2019, written submissions were provided to the court on behalf of the accused.

65. It was submitted that the prosecution cannot establish the identity of the two shooters as being Mr Ahmed and Mr Barakat and it is not the Crown case that either of those men were present in the stolen Audi at the time of the shooting. It was submitted that the case against the accused does not depend on the prosecution establishing that those two men with the shooters.

66. Nor does the prosecution assert that there was any communication between the accused and the shooters when both of their vehicles are said to be in the same area on 14 October 2016.

67. It was accepted that the Crown case would be strengthened if there was any cogent evidence of pre-planning or association between the accused and the shooters or between the accused and the stolen Audi SQ5. The prosecution is not obliged to establish motive and nor is its case that the accused entered into a joint criminal enterprise with Mr Barakat and Mr Ahmad to kill the deceased.

68. As for the potential evidence of witnesses 1 and 2, it is unknown whether either of them nominates the accused as being present at the Café with Mr Barakat and Mr Ahmed on 25 October 2016. It was submitted that absent acts or declarations by others said to be in pursuit of a joint criminal enterprise even this evidence would not be relevant.

69. It was submitted that, without more, any evidence of the three men meeting on the morning of the murder would not advance the case against the accused in any significant manner.

70. As for the potential evidence of witnesses 3 and 4, it was submitted that it is difficult to assess the importance of their evidence from the limited details available.

71. Although the Crown’s submissions on this application set out a suspicion that the accused was in the company of Mr Barakat of the morning of 25 October 2016, it is not asserted that two people can be identified in the vehicle at the relevant time. On this basis, even if the witnesses 3 and 4 could support this suspicion, it would not connect the accused with the stolen Audi.

72. As for the evidence of witness 5, the value of his evidence needs to be assessed in light of what the prosecution will assert is a series of lies told by the accused. It was submitted that, if the high point of the evidence of this witness that the accused asked him for a hubcap, then it may not be possible to assert that the request supports the Crown’s contention that the accused lied in his interview about this.

73. As to the relevant discretionary considerations, it was submitted that the evidence has been identified at a very late stage and no adequate explanation for the delay has been disclosed. It was submitted that the evidence has the potential to delay the trial and may even necessitate requests for further pre-trial discovery, if it is released to the parties. Nor is it clear, it was submitted, from the details disclosed that the evidence is necessarily central to the allegations to be litigated.

74. Reliance was placed on the observations by Hamill J in R v Quami (No 11) at [17], [19], [24] and [28] which I will consider further below.

75. Finally, it was submitted that the accused has been in custody awaiting trial for two years and four months. It was submitted that the interests of justice require weighing the Crown’s request for release of the identified evidence against the need to ensure a fair and timely trial for the accused. Given the unexplained lateness of the Crown’s request and the other matters identified above, it was submitted that the transcript sought by the prosecution should not be released.

Hearing on 14 November 2019

76. At the further hearing of the s 45(5) application on 14 November Mr Bhalla of counsel appeared on behalf of the Crime Commission to provide assistance as to the possible public interest immunity issues that would need to be considered before the material could be released in any event. Mr Crown and Mr Kelly were excluded from the court room whilst those submissions were made.

77. When Mr Kelly and Mr Crown returned to the court room I invited further submissions. I also clarified with Mr Crown whether it was necessary for me to read the second of the two folders provided by the Crown on Friday 8 November 2019. The second of the two folders contained numerous intercept transcripts. Mr Crown confirmed that the documents were said to relate to an additional Crown summary in volume one. I inquired of Mr Kelly whether there was any dispute that the relevant summary was inaccurate. He accepted it to be accurate and I inquired for Mr Crown whether, if that be the case, it was necessary for me to read them all and he agreed that it was not.

78. After hearing further submissions I indicated that I was in a position to make my decision. I ruled that I was not satisfied that the interests of justice required the further disclosure of this material. I indicated that I would publish my reasons at a later date. Mr Crown was content with this later publication of the reasons.

Consideration

79. The relevant statutory task I am being asked to perform is whether “the interests of justice” “require” me to make this compelled evidence available to the Crown and Mr Hawat’s lawyers in this matter.

80. In Quami (No 11), Hamill J considered the relevant authorities dealing with the concept of “the interests of justice” in different statutory contexts. I have had regard to the relevant authorities summarised by his Honour at [17]-[22]. I am satisfied that I am required to consider “the interests of justice” in the context of balancing the overriding need for a fair trial.

81. I have also had regard to the principles articulated by Hamill J at [23]-[32] regarding particular circumstances that could militate for or against publication to the parties in any matter, although it must be noted that in Quami(No 11) it was the accused who were seeking that the compelled testimony be made available rather than the Crown.

82. Before I consider the relevant discretionary factors militating for and against disclosure, I consider it necessary to observe that an individual’s right to silence is not confined to answering questions which might incriminate him or her. In R v Director of Serious Fraud Office, ex parte Smith [1993] AC 1 at 30-31), Lord Mustill stated that the expression “the right to silence……:”

“ does not denote any single right, but rather refers to a disparate group of immunities which differ in nature, origin, incidence and importance, and also as to the extent to which they have already been encroached upon by statute.”

83. His Lordship went on to list six separate “rights” referred to as a “right to silence”, the first of which he described as:

“(1) A general immunity, possessed by all persons and bodies, from being compelled on pain of punishment to answer questions posed by other persons or bodies.”

84. Of course, the fact that a person has a right not to speak to police does not mean that he or she cannot be compelled to attend court as a witness. Just because they refuse to provide a statement to police does not mean that they are not liable to be served with a subpoena to give evidence in court on the subject matter they declined to speak about. If they fail to appear in response to a subpoena they are liable for punishment and/or if they appear but decline to answer any questions they can be liable for punishment for contempt of court.

84. It is important to understand that the relevant provisions of the Crime Commission Act abrogate a person’s common law right not to speak to police, even if they are simply a witness not criminally concerned in the subject of the investigation. Thus, a form of investigative methodology is available to police that, if witnesses refuse to be interviewed by police in relation to a serious allegation (particularly when the murder appears to have occurred in the context of criminal gang activity), the matter might be referred to the NSW Crime Commission for it to use its coercive powers to get those reluctant witnesses to speak.

85. If the Crime Commission is satisfied that “all or any classes of answers given by a witness or that all or any classes of documents or other things produced by a witness will be regarded as having been given or produced on objection by the witness”, it has the power to summon the unwilling witnesses to give evidence under compulsion. The terms of the Crime Commission Act provide that such witnesses will be put on notice that, despite there being a non-publication order on their compelled testimony, their evidence may be provided to law enforcement authorities.

86. There are numerous reasons why persons might not wish to speak to police and not all of them involve a fear of self-incrimination. It is well established that persons might not wish to speak to police out of fear they might be considered to be an informer or a “dog”. There can be serious physical or other repercussions if it is found out that a person has done so. Such a person might even choose to be prosecuted for not answering questions before the Crime Commission rather than risk speaking to the authorities. This is especially so when they are informed that their answers might be provided to law enforcement authorities if considered appropriate.

87. Even though it is to be accepted that the right not to speak to police does not apply to the secret hearings at the Crime Commission, I nonetheless consider it relevant to have regard to the fact that any compelled witnesses subject to s 45(5) application by the Crown has been told that a non-publication order would be made over it. Hamill J made a similar observation in Quami (No 11) at [23].

88. Returning to the other discretionary factors militating for and against publication, I have had regard to those identified by Hamill J and added some of my own. I wish to emphasise that I am not suggesting that these matters were or were not present in the case before me; I state them as a matter of general principle. In doing so, I am satisfied that the starting point is that it is to be presumed that the evidence is not to be released unless the statutory test is met.

89. It seems to me that matters militating in favour of disclosure might include:

1. If the witness is already a Crown witness. It would then be necessary to have regard to whether the contents of the compelled testimony is consistent or, to quote Hamill J “patently inconsistent” with their anticipated trial evidence;

2. If the evidence is highly probative of an important issue at the trial;

3. If the evidence is exculpatory of the accused;

4. If the witness consents to the release of the material.

91. Similarly, it seems to me that matters militating against disclosure might include:

1. If the release of the material may place the witness in physical danger. As stated above, informers may be the target of reprisals. Expressions of fear by the witness in the course of their Crime Commission testimony will be a factor militating against the release of the material;

2. If the witness refused to answers questions at the Crime Commission and was prosecuted under s 25(2) of the Crime Commission Act for such refusal. In these circumstances it is unlikely that the witness would give evidence in court, even under threat of being held in contempt of the court. In an extreme case, there is also a risk that such a witness could attempt to abort the trial if compelled to give evidence in court;

3. If a witness gave false or misleading evidence to the Crime Commission. This would impact on the witness’s credibility;

4. If the answers in the compelled testimony are fanciful;

5. If the ODPP application for the material was not made in a timely manner and release of the compelled testimony would lead to the trial having to be vacated.

92. A further complicating factor arose in the present application being the potential public interest immunity claims that would need to be made over a significant amount of the produced material. Mr Bodor and Mr Bhalla outlined the nature of those claims in the two closed court sessions I have already referred to. Those matters were not insignificant and I will refer to them in my confidential judgment annexed.

93. As for the relevance of the material to the issues in the trial, both Mr Crown and Mr Kelly were restricted in their submissions in this regard as neither had any knowledge as to what might be in the material. Despite this, Mr Kelly raised a significant factual matter concerning the identity of the shooters. The names of the shooters are not identified in the Indictment. Despite this, in the Crown case statement it is stated that police suspect that the two shooters are Mr Barakat (who is now deceased) and Mr Ahmad who has not been charged with the murder and is presently in custody serving a sentence. As stated above, the Crown case statement also includes an assertion that the deceased is suspected of being the person who shot Mr Ahmad’s brother Wally.

94. When I asked Mr Crown in court on 14 November 2019 how he would be putting to the jury that these two men might be the shooters, I was informed that this relevant suspicion no longer plays any part in the Crown case and is to be removed from the Crown case statement. As Mr Kelly pointed out, even if the material sought by the ODPP from the Crime Commission included material showing association between Mr Hawat, the late Mr Barakat and Mr Ahmad, that would not of itself be relevant without evidence showing that those two men are suspected of being the shooters.

95. Having read all of the material and considered it in the context of the Crown case, I am satisfied that its probative value is low and there are other features of the material which further militate against it being provided to the parties. I have dealt with that issue in my confidential reasons. I have had regard to these factors in the context of the lateness of the application, which was never properly explained.

96. This matter has been listed for trial since 7 December 2018. Mr Hawat has been in custody on remand for over two and a half years. Even if I was otherwise satisfied that the interests of justice required the release of the material, which I am not, release of it would have meant that the trial could not commence this year.

97. Having examined all of the evidence and heard counsels’ submissions, I am not satisfied that the “interests of justice” “require” me to make the evidence available to the Crown and Mr Hawat. It follows from this that I did not consider it necessary to contact any of the witnesses concerned to give them the opportunity to be heard on this question.

98. I propose to dismiss this application. I have set out that part of my reasons which deals with the content of the compelled testimony in a separate and unpublished annexure to this judgement in order that this judgment is amenable to appeal. I note that Hamill J took the same approach in Quami (No 11) at [7]. I propose to order that this annexure be placed in a sealed envelope marked “not to be opened except by order of a judge of this Court or a judge of a higher Court” and kept with the file copy of this Judgment.

99. Accordingly, I make the following order:

1. The application by the Crown for material to be released under s 45(5) of the Crime Commission Act is refused.

Amendments

10 December 2019 - Trial concluded, decision unrestricted.

Decision last updated: 10 December 2019