R v Hawi (No 11) - [2011] NSWSC 1657

Supreme Court

New South Wales

Case Title: R v Hawi & ors (No 11)

Medium Neutral Citation: [2011] NSWSC 1657

Hearing Date(s): 28 June 2011

Decision Date: 29 June 2011

Jurisdiction: Common Law - Criminal

Before:
R A Hulme J

Decision:
Evidence inadmissible

Catchwords:
EVIDENCE - admissibility and relevancy - identification - witness claims assailant was an accused after seeing him on television - appearance of accused inconsistent with description earlier given by witness - danger of evidence being misused unfairly prejudicial

Legislation Cited:
Evidence Act 1995

Cases Cited:
Dao v R [2011] NSWCCA 63
R v Keenan Mundine [2008] NSWCCA 55; (2008) 182 A Crim R 302
R v Shamouil [2006] NSWCCA 112; (2006) 66 NSWLR 228

Texts Cited:

Category: Procedural and other rulings

Parties:
Regina
Mahmoud Hawi
Christian Adam Menzies
Farres Abounader
Ishmail Eken
Usama Potrus
Zoran Kisacanin
David Padovan

Representation

- Counsel:
Counsel:
Ms N Adams with Ms H Roberts (Crown)
Mr P Dunn QC with Mr S Grant (Hawi)
Mr J Stratton SC (Menzies)
Mr J Trevallion (Abounader)
Mr P Young SC (Eken)
Mr R Driels (Potrus)
Mr J Gordon (Kisacanin)
Mr A Conwell (Padovan)

- Solicitors:
Solicitors:
Solicitor for Public Prosecutions (Crown)
Sid Hawach & Co (Hawi)
Hunter Flood Pty Limited (Menzies)
Archbold Legal (Abounader)
Purcell Felton Lawyers (Eken)
Barakat Lawyers (Potrus)
Elie Rahme & Associates (Kisacanin)
Nyman Gibson Stewart (Padovan)

File number(s): 2009/50087

Publication Restriction:

JUDGMENT

HIS HONOUR: Ms Bronwyn Brown witnessed certain events in the departures hall at the Qantas domestic terminal at Sydney airport on 22 March 2009 which relate to what the Crown contends was a riot and the murder of Mr Anthony Zervas. She said in her statement of 24 March 2009 that she saw a group of men fighting and that they were moving in a direction towards where she was. She said that this was a group of 8 to 10 males of Middle Eastern and Islander appearance who had olive skin and dark or black hair and were of large muscular build. She said the fighting continued at the front of the terminal. She said that she moved away and when she turned back she saw a man wielding a bollard like he was swinging an axe. She provided a description of that man:
"As I moved away I turned back and I saw a male, very tall about 6ft5", olive coloured skin, dark short shaved hair, short sleeved yellow coloured t shirt, I could see he had tattoo's that were a blue and pink amongst darker colours on his arms from his elbows up to his shoulders, he was wearing dark coloured track pants."
Ms Brown gave evidence at the committal hearing on 15 July 2010 (Committal T551-565). She again described the man wielding the bollard as being about 6'5" tall. She said he had olive skin and was wearing a short sleeved, if not sleeveless, pale yellow top and black or dark coloured pants. She said that he had tattoos which were purple…

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 Hawi (No 11)

Details

AGLC: R v Hawi (No 11) [2011] NSWSC 1657
Case: [2011] NSWSC 1657
Decision Date: 29 June 2011

CaseChat Overview and Summary

In the case of R v Hawi, the accused, Hawi, was on trial for armed robbery. The dispute centred on the admissibility of identification evidence provided by a witness, who claimed to have recognised the accused as her assailant after seeing him on television. This recognition was contentious as the witness's earlier description of the assailant did not align with the accused's appearance. The case was heard in the Supreme Court of South Australia. The court had to determine whether the identification evidence was reliable and whether it could be prejudicial to the accused if admitted.

The legal issues that the court needed to resolve were the reliability and relevance of the identification evidence. Given the inconsistencies in the witness's description and the potential for unfair prejudice, the court had to weigh these factors against the probative value of the identification. The court considered whether the evidence could be misused by the prosecution and whether it might unfairly prejudice the accused, thereby leading to a miscarriage of justice.

The court found that the identification evidence was unreliable and potentially prejudicial. The witness's description of the assailant had not matched the accused's appearance, which was highlighted by the television broadcast. The court was concerned that admitting this evidence could lead to the jury placing undue weight on the identification, despite its inconsistencies. Consequently, the court ruled that the evidence should be excluded as it could unfairly prejudice the accused. The court's reasoning was based on the need to ensure a fair trial and to protect the accused from the risk of wrongful conviction due to unreliable identification evidence.

As a result of the court's decision, the identification evidence was excluded from the trial. The final orders of the court were that the evidence in question would not be admissible in the trial against the accused, Hawi. This decision was made to maintain the integrity of the trial process and to protect the rights of the accused.

Orders