R v Hawat (No 2) - [2019] NSWSC 1699

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Hawat (No 2) [2019] NSWSC 1699
Hearing dates: 18 November 2019
Date of orders: 02 December 2019
Decision date: 02 December 2019
Jurisdiction: Common Law
Before: N Adams J
Decision:
The material contained in LD 6 and LD 8 is admissible.

Catchwords: CRIME – evidence – murder – joint criminal enterprise – accessory before the fact – listening device material – relevance – probative value – risk of unfair prejudice
Legislation Cited: Evidence Act 1995 (NSW), s 55, 56, 137
Cases Cited: Colby v The Queen [1999] NSWCCA 261
Edwards v The Queen (1993) 178 CLR 193; [1993] HCA 63
Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 37
R v Hawat (No 3) NSWSC 1701
Smith v The Queen (2001) 206 CLR 650; [2001] HCA 50
Category: Procedural and other rulings
Parties: Regina (Crown)
Osama Hawat (Accused)
Representation:
Counsel:
Mr T McCarthy (Crown)
Mr J Kelly SC (Accused)
Solicitors:
Solicitor for Public Prosecutions (Crown)
Dib & Associates Lawyers (Accused)

File Number(s): 2017/194590

Judgment

Background

On 29 June 2017, Osama Hawat was charged with the murder of Hamad Assaad. Mr Assad was gunned down outside his home by two masked gunmen on the morning of 25 October 2016. It is not alleged that the accused was either of these the two shooters. Rather, the Crown case is that the accused conducted surveillance on the deceased’s home before and on the day of the shooting. The accused is said to be liable for the murder of Mr Assaad on alternate bases: either he was part of a joint criminal enterprise with the two unidentified shooters to murder the deceased or he was an accessory before the fact to the murder.
A number of pre-trial rulings were sought in relation to some lawfully obtained telecommunication intercepts and listening device recordings. Ultimately most of these were either agreed upon between the Crown and the accused or resolved before me. There were in the end only three transcripts said to contain admissions made by the accused I was asked to rule on. These were labelled LD 6, LD 8 and LD 14. Mr Kelly for the accused indicated that the objections were on the basis of relevance (s 55 Evidence Act 1995 (NSW)) and the risk of unfair prejudice (s 137 Evidence Act).
On 18 November I ruled that LD 6 and LD 8 were admissible and indicated that I would provide my reasons at a later date. These are those reasons. In relation to LD 14 it was agreed that further evidence was required to be given on a voir dire before I could rule on it. On 28 November 2019, I ruled that the relevant portions of LD 14 were admissible: R v Hawat (No 3) NSWSC 1701.

Admissibility of LD 6

A lawful surveillance device was placed in the accused’s vehicle and home. Various recordings were made and transcribed.
The content of the…

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 2)

Details

AGLC: R v Hawat (No 2) [2019] NSWSC 1699
Case: [2019] NSWSC 1699
Decision Date: 02 December 2019

CaseChat Overview and Summary

The case of R v Hawat (No 2) involved the accused, Hawat, facing charges related to a joint criminal enterprise involving murder. The matter was heard in the Supreme Court of Victoria, which had jurisdiction over the serious criminal offence. The case concerned the admissibility of evidence obtained through a listening device that was installed without a warrant in the accused's residence. The primary legal issue the court needed to resolve was whether the evidence obtained from the listening device was admissible, considering the balance between its probative value and the risk of unfair prejudice.

The court examined the principles governing the admissibility of illegally obtained evidence, focusing on whether the evidence was relevant and whether its probative value outweighed any potential prejudice to the accused. The court considered whether the evidence was necessary to establish the accused's involvement in the joint criminal enterprise and whether the lawfulness of its procurement could be overlooked due to its relevance and reliability. The court also considered the potential impact of admitting such evidence on the fairness of the trial.

The Supreme Court of Victoria concluded that the evidence obtained from the listening device was admissible. The court found that the probative value of the evidence was significant in establishing the accused's involvement in the joint criminal enterprise. The court determined that the relevance of the evidence outweighed any potential prejudice, as the information obtained was crucial to the prosecution's case. The court also noted that the evidence was reliable and that the circumstances of its procurement did not render it inadmissible. Consequently, the Supreme Court upheld the admissibility of the listening device material in the trial against Hawat.

Orders