R v Hawat (No 4) - [2019] NSWSC 1726

Supreme Court

New South Wales

Medium Neutral Citation: R v Hawat (No 4) [2019] NSWSC 1726
Hearing dates: 27 November 2019
Date of orders: 29 November 2019
Decision date: 09 December 2019
Jurisdiction: Common Law
Before: N Adams J
Decision:
Question and answers 274-5, 277 and 286 of the accused’s ERISP on 29 June 2017 are admissible.

Catchwords: CRIME – evidence – murder – joint criminal enterprise – accessory before the fact – Electronically Recorded Interview of a Suspected Person – answers to questions – relevance – probative value – unfairness to the accused
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 19; HCA 63
Papakosmas v The Queen (1999) 196 CLR 297; HCA 37
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

On the sixth day of this trial I was asked to rule on the admissibility of a number of questions and answers in the accused’s Electronically Recorded Interview of a Suspected Person (“ERISP”), on 29 June 2017.
To provide context to the application, the accused is charged with the murder of Hamad Assaad on the basis that he was either part of a joint criminal enterprise with others to murder the deceased or he was an accessory before the fact to the murder. The Crown case is that he conducted surveillance of the deceased’s home before he was shot.
On 29 June 2017, the accused was arrested and interviewed. A search warrant was executed at his home at approximately 6am and by 7.30am he was at Bankstown Police Station. He participated in an ERISP until such time as his solicitor telephoned the police station and spoke to him. When the ERISP resumed the accused answered every question by stating “no comment” and the interview was terminated.
The Crown relies upon certain answers provided by the accused in his ERISP as lies evidencing consciousness of guilt. The lies all pertain to the accused’s van which is depicted in a CCTV footage driving by the home of the deceased on a number of occasions prior to and on the day of the shooting.
The lies are contained in answers to questions 344-346, 356 and 412 of the transcript of the accused’s ERISP and can be briefly summarised as follows:

“I never had that wheel hub missing".

“I never had my wheels missing.”

“I don't even have two pipes on my van.”

“I don't even have a back step bar.”

“I don't even have a front step bar.”

“I don't have two pipes on my roof.”

“That's not my van."

It can be seen that the alleged lies are all, in effect, that the accused denied that the photos were of his van. The Crown relied upon other evidence to establish…

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 4)

Details

AGLC: R v Hawat (No 4) [2019] NSWSC 1726
Case: [2019] NSWSC 1726
Decision Date: 09 December 2019

CaseChat Overview and Summary

The respondents, Hawat and others, were charged with various offences including murder, attempted murder, and conspiracy to commit murder in relation to a violent incident in Sydney in 2012. The trial of the respondents was heard in the Supreme Court of New South Wales, with Justice Hulme presiding. The primary legal issues the court had to decide involved the admissibility of answers provided by Hawat during an electronically recorded interview, and the probative value and fairness of such evidence. The respondents argued that the answers were obtained unfairly and that they should be excluded as they lacked probative value.

The court considered the principles governing the admissibility of evidence obtained from a person in police custody. It held that the probative value of the answers must be substantial and outweigh any prejudicial effect. The court noted that the answers were relevant to the case and had a significant probative value in relation to the joint criminal enterprise and Hawat's role as an accessory before the fact. The court found that the evidence was not unfairly obtained, and the procedures followed were appropriate. The court determined that the probative value of the answers outweighed any prejudicial effect and that the evidence should be admitted.

The Supreme Court held that the answers provided by Hawat during the electronically recorded interview were admissible as they were relevant to the case and had substantial probative value. The court found that the evidence was not unfairly obtained and that the procedures followed were appropriate. The court held that the probative value of the answers outweighed any prejudicial effect. The court allowed the appeal and remitted the matter to the District Court for re-trial.

The final orders of the court were that the appeal be allowed and the matter be remitted to the District Court for re-trial. The court also ordered that the evidence in question be admitted and considered in the re-trial.

Orders