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

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”

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.
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)

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Hawat (No 1)

Details

AGLC: R v Hawat (No 1) [2019] NSWSC 1583
Case: [2019] NSWSC 1583
Decision Date: 19 November 2019

CaseChat Overview and Summary

In the case of R v Hawat, the respondent, David Hawat, applied for the release of evidence given before the New South Wales Crime Commission pursuant to sections 45(4) and (5) of the Crime Commission Act 2012 (NSW). The application arose in the context of a joint criminal enterprise involving serious criminal activity, including murder. The application was made in the context of criminal proceedings against the applicant, Hawat, and others for their involvement in the criminal enterprise. The application was opposed by the Attorney General of New South Wales and the Director of Public Prosecutions (NSW).

The primary legal issue before the court was whether the disclosure of the evidence obtained from the Crime Commission would be in the interests of justice. The court considered a range of factors in making this determination, including the public interest in the disclosure of the evidence, the potential impact of disclosure on the administration of justice, and the potential prejudice to the respondents if the evidence were disclosed. The court also considered whether the evidence had probative value in relation to the charges against the respondents. The court noted that the evidence in question related to serious criminal activity and the potential prejudice to the respondents if the evidence were disclosed was significant.

The court found that the public interest in the disclosure of the evidence outweighed the potential prejudice to the respondents. The court held that the evidence had significant probative value in relation to the charges against the respondents and that the disclosure of the evidence was necessary to ensure a fair trial. The court also noted that the evidence had already been subject to a rigorous process of review by the Crime Commission and that there were safeguards in place to protect the privacy and confidentiality of individuals who provided evidence to the Commission. The court concluded that the disclosure of the evidence was in the interests of justice.

The court ordered that the evidence obtained from the Crime Commission be disclosed to the respondents. The court also made orders to protect the privacy and confidentiality of individuals who provided evidence to the Commission, including redactions and the use of pseudonyms where necessary. The court emphasised the importance of ensuring that the rights of individuals who provide evidence to the Crime Commission are protected while also ensuring that justice is served in criminal proceedings.

Orders