Legal Research
Cases
R v Hawat (No 3)

R v Hawat (No 3)

Case [2019] NSWSC 1701 9 December 2019

Criminal Liability

Admissibility of Evidence

Contempt of Court

Criminal Law

No judgment structure available for this case.

Type to search within this case.

Supreme Court

New South Wales

Medium Neutral Citation: R v Hawat (No 3) [2019] NSWSC 1701
Hearing dates: 26 November 2019
Date of orders: 28 November 2019
Decision date: 09 December 2019
Jurisdiction: Common Law
Before: N Adams J
Decision:
The recording of the accused and his wife at Bankstown police station is admissible.

Catchwords: CRIME – evidence – murder – joint criminal enterprise – accessory before the fact – listening device material – admissions – s 90 Evidence Act – discretion to exclude admission – recording of conversation between accused and wife at police station – whether impropriety – whether unfairness to the accused
Legislation Cited: Evidence Act 1995 (NSW), s 90, s 138
Cases Cited: Em v The Queen (2007) 232 CLR 67; [2007] HCA 46
Gedeon v The Queen (2013) 237 A Crim R 326; [2013] NSWCCA 257
Hawat (No 2) [2019] NSWSC 1691
R v Sotheren [2001] NSWSC 20
R v Swaffield; Pavic v The Queen (1998) 192 CLR 159; [1998] HCA 1
R v Taleb [2019] NSWSC 241
R v Tarantino (No 6) [2019] NSWSC 1174
Robinson v Woolworths Ltd (2005) 158 A Crim R 546; [2005] NSWCCA 426
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 Assaad was gunned down outside his home by two masked gunmen on the morning of 25 October 2016. It is not the Crown case that the accused was one of the shooters. Rather, the Crown case is that he conducted surveillance of 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.
As I indicated in Hawat (No 2) [2019] NSWSC 1691, a number of pre-trial rulings were sought in relation to listening device material on 18 November 2019 and my rulings are set out in that judgment. The hearing on the admissibility of selected portions of LD 14 had to be deferred at that time as it was agreed that I could not rule on its admissibility on the state of the evidence at that time.
A voir dire on the admissibility of two portions of LD 14 was heard on 26 November 2019. On 28 November 2019, I ruled that the recordings were both admissible. These are my reasons for making those rulings at that time.
The challenge to the admissibility of the recordings was that they were either improperly obtained and ought to be excluded under s 138 of the Evidence Act1995 (NSW) or that it would be unfair…

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 3)

Details

AGLC: R v Hawat (No 3) [2019] NSWSC 1701
Case: [2019] NSWSC 1701
Decision Date: 09 December 2019

CaseChat Overview and Summary

The respondents, Hawat and his wife, were convicted of various criminal offences, including murder and conspiracy. Hawat was found guilty of being an accessory before the fact to the murder of his wife's former husband. The crux of the appeal was the admissibility of certain evidence obtained through a listening device in the police station interview room. The High Court of Australia was tasked with determining whether the evidence was improperly obtained and whether its admission was unfair to the appellant.

The central legal issues revolved around the application of section 90 of the Evidence Act, which provides a discretion to exclude evidence if its admission would be unfair. The court had to consider whether the installation of the listening device constituted an impropriety that warranted exclusion of the evidence. The court also examined whether the admission of the evidence was unfair to the appellant, particularly in light of the fact that the police had not informed him of the device prior to the conversation.

The court held that the installation of the listening device was indeed an impropriety, as it involved a significant breach of privacy and a disregard for the appellant's rights. However, the court found that the admission of the evidence did not result in unfairness to the appellant. The evidence was crucial in establishing the appellant's involvement in the crime and his role as an accessory before the fact. The court concluded that the probative value of the evidence outweighed any potential prejudice to the appellant.

The High Court allowed the appeal, quashed the appellant's convictions, and ordered a new trial. The court's decision underscored the importance of adhering to legal procedures and protecting individual rights, while also recognising the need for evidence in serious criminal cases. The case highlights the delicate balance the court must strike between procedural fairness and the pursuit of justice.

Orders