Legal Research
Cases
R v Hawat (No 5)

R v Hawat (No 5)

Case [2019] NSWSC 1727 9 December 2019

Accessory Before the Fact

Admissibility of Evidence

Murder

Criminal Law

No judgment structure available for this case.

Type to search within this case.

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Hawat (No 5) [2019] NSWSC 1727
Hearing dates: 29 November 2019
Date of orders: 03 December 2019
Decision date: 09 December 2019
Jurisdiction: Common Law
Before: N Adams J
Decision:
The material contained in LDs 1, 2, 4, 5 and 6 is inadmissible, except for the audible passages referred to at [50]-[54].

Catchwords: CRIME – evidence – murder – joint criminal enterprise – accessory before the fact – listening device material – relevance – probative value – inaudible
Legislation Cited: Evidence Act 1995 (NSW), s 55, 56, 76, 78, 79
Cases Cited: Butera v Director of Public Prosecutions (1987) 164 CLR 180; [1987] HCA 58
Colby v The Queen [1999] NSWCCA 261
Dasreef Pty Ltd v Hawchar (2011) 277 ALR 611; [2011] HCA 21
Honeysett v R (2014) 253 CLR 122; HCA 29
Kheir v R [2014] VSCA 200
Lithgow City Council v Jackson (2011) 244 CLR 352; HCA 36
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; 2001 NSWCA 305
Papakosmas v The Queen (1999) 196 CLR 297; HCA 37
R v Georgiou [2005] NSWCCA 237
Regina v Leung and Wong (1998) 47 NSWLR 405; NSWCCA 287
Williams v The Queen [1982] Tas R 266
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 20 November 2019, the trial commenced in this matter. The accused is charged with the murder of Hamad Assaad of either being part of a joint criminal enterprise or being an accessory before the fact to the shooting of the deceased by others. The Crown case against the accused relies in part on various listening device recordings as well as CCTV footage, telephone intercepts and alleged lies told in his ERISP.
Prior to the trial commencing, the Crown Prosecutor indicated to the court that the recordings were of “very poor quality” and that the Crown relied upon a statement made by Detective Lucy Ede, who listened to them “many, many times”. There was no further discussion of this issue during pre-trial arguments.
On Tuesday 26 November 2019, prior to the tender of the listening device recordings, the Crown Prosecutor indicated that he was having difficulty playing the recordings in court such that they were unable to be properly heard or understood. The Crown requested and was granted an adjournment to obtain better recording equipment, either from New South Wales Police or the Office of the Director of Public Prosecutions.
On Thursday 28 November 2019, equipment was brought to court in an attempt to play the recordings in such a manner that the words spoken were audible. Efforts were made to see whether noise-cancelling headphones could be provided to the jury but they were incompatible with the court playback system. After a number of adjournments and efforts…

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 5)

Details

AGLC: R v Hawat (No 5) [2019] NSWSC 1727
Case: [2019] NSWSC 1727
Decision Date: 09 December 2019

CaseChat Overview and Summary

The case of R v Hawat (No 5) involved the appellant, Hawat, who was convicted of being an accessory before the fact to the murder of two police officers. The court of appeal was tasked with considering the admissibility of evidence obtained from a listening device. The material from the device was central to the prosecution's case against Hawat. However, parts of the audio were inaudible, which led to a challenge on its probative value. The case required the court to determine whether the inaudible portions of the evidence diminished its value to the extent that it should be excluded.

The primary legal issue was the extent to which the inaudibility of parts of the listening device material affected its admissibility and probative value. The appellant argued that the inaudible sections rendered the evidence unreliable and should not have been considered by the jury. The court had to balance the prejudicial effect of the inaudible parts against the overall probative value of the evidence. The court examined the principles of admissibility and the weight to be given to evidence that is partially inaudible. It also considered whether the jury could reasonably discern the audible parts of the evidence from the context of the entire recording.

In its decision, the court held that the probative value of the listening device material was not substantially diminished by the inaudible portions. The court found that the jury was capable of making sense of the audible parts in the context of the entire recording, and the overall content remained significant. The court held that the trial judge had appropriately directed the jury on the consideration of the inaudible parts, and thus, the evidence was properly admitted. The court concluded that the inaudible sections did not outweigh the probative value of the audible content, and therefore, the evidence was admissible.

The court of appeal upheld the conviction, finding no error in the trial judge's handling of the listening device evidence. The appellant's appeal was dismissed, and the original conviction was affirmed. The court reiterated the importance of context and the ability of a jury to assess the significance of partial evidence. The decision underscored the principle that evidence should not be excluded solely because it contains some inaudible parts if the remaining content is sufficiently clear and probative.

Orders