R v Hawi (No 11)
[2011] NSWSC 1657
•29 June 2011
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 228Texts Cited: Category: Procedural and other rulings Parties: Regina
Mahmoud Hawi
Christian Adam Menzies
Farres Abounader
Ishmail Eken
Usama Potrus
Zoran Kisacanin
David PadovanRepresentation - 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 and red on his right arm running from the shoulder almost to the wrist.
Ms Brown gave evidence on the voir dire yesterday (T1548-1551) to the effect that she had not had any conferences with prosecution lawyers until yesterday morning. In that conference, with reference to the man she had described in her statement, she said:
"I know who it was but I'm not going to say".
She was asked what she meant by that. She replied that she was reticent to name him because she was afraid of repercussions.
She then told the prosecutors that the man with the bollard was "Mick Hawi" and that she was able to say that:
"Because I recognised his face on the television several weeks after the incident at the airport".
She was asked what she had seen on the television:
"I think the police were going to arrest him and they were in a helicopter flying over his house in Bexley and they flashed up on the corner of the screen, a picture of who they were going to arrest, and I instantly recognised him".
Shortly before she came into court after the luncheon adjournment yesterday she had a further conversation with leading and junior counsel for the Crown and was asked why she had not told anyone before. She replied that it was because she did not want to be involved in having to identify anybody in a line-up and she reiterated that she was afraid of repercussions. She also said that her husband had told her that she would be foolish to say anything.
In cross-examination on the voir dire, in response to leading questions, Ms Brown said that she did not want to tell anybody about her "identification" of the man with the bollard as being the accused Hawi because she knew he was a bikie. She had read about the fact that there were two bikie gangs involved at the airport. She had followed the media reporting. She had seen that a police task force had been set up. The then Premier of New South Wales had said he was going to get tough on the bikies. There had been a number of articles on bikie wars and shootings. It was her impression on seeing such material that the bikies were to be feared. It was because of this, and her fear of repercussions, that she did not want to say that the man she had described in her statement was Mick Hawi.
Submissions
Mr Dunn QC objected to the evidence of Ms Brown saying that the man she had seen wielding a bollard was the accused Hawi. He questioned the probative value of the evidence and submitted that whatever that may be, it was outweighed by the danger of unfair prejudice. If that is so, there is no discretion. The evidence must be excluded: s 137 Evidence Act 1995.
It was submitted that the man she described cannot be Mr Hawi. Mr Hawi was wearing a white t-shirt and white trousers and the description of Mr Brown was inconsistent with that. Further, her estimation of the height of the man was submitted to be 30 centimetres taller than Mr Hawi (in fact,19 centimetres). As such, it was submitted that the evidence lacks any real probative value.
Mr Dunn submitted that the potential prejudice is very high. He contended that it would be necessary to ask Ms Brown to explain why she now purported to be able to say that the man wielding the bollard was Mr Hawi. That would involve her talking about her being frightened; having read about bikies, bike wars, shootings and things like that; task forces being set up; statements being made by the Premier about getting tough on bikies; helicopters flying over Mr Hawi's house. Such matters, so it was submitted, would create "real and active prejudice".
Mr Gordon, on behalf of the accused Kisacanin, joined in the submissions made by Mr Dunn upon the basis of an assertion that the prejudice "overflows to everybody else".
The Crown Prosecutor reminded me of authorities such as R v Shamouil [2006] NSWCCA 112; (2006) 66 NSWLR 228 and R v Keenan Mundine [2008] NSWCCA 55; (2008) 182 A Crim R 302 in reliance upon a submission that in considering the probative value of the evidence it is not for me to determine its reliability or the witness' credibility. Simpson J put the proposition succinctly in Mundine :
[33] Although some contrary views have been expressed (see, for example Papakosmas v The Queen [1999] HCA 37; 196 CLR 297, per McHugh J; R v Rahme [2004] NSWCCA 233, per Hulme J (dissenting), the prevailing wisdom is that it is not open to a trial judge, in assessing, for the purposes of s 137, the probative value of any piece of evidence, to take into account his/her evaluation of its reliability or of the credibility of the witness through whom it is tendered: R v Shamouil [2006] NSWCCA 112; 66 NSWLR 228 at [47]-[65], per Spigelman CJ; and see Adam v The Queen [2001] HCA 57; 207 CLR 96, per Gaudron J. That is, "probative value" is not to be determined by the weight that might be given to any piece of evidence. What is to be considered is the role that that piece of evidence, if accepted , would play in the resolution of a (disputed) fact - or the contribution it might, if accepted , make to that resolution. Apart from anything else, to make the assessment of probative value on the basis of the perceived credibility or reliability of the witness through whom it is given, or perceived weakness in the evidence, would be to attempt to anticipate the weight the jury would attach to it, a task to be undertaken by the jury when all the evidence is complete.
Her Honour added, in Dao v R [2011] NSWCCA 63 at [182], that the task of a trial judge in considering an objection to the admissibility of evidence based upon s 137 is not to predict the likelihood that a jury would accept the evidence.
It was submitted by the Crown Prosecutor that the probative value of the evidence was "high". The qualification to the description of the shirt worn by the bollard wielding man that Ms Brown made in her committal evidence, that is, that the "yellow shirt" (per her statement) was "pale yellow" was significant in that it comes closest to the white top that Mr Hawi was undoubtedly wearing, and is in contrast to the dark coloured clothing that most of the others were wearing.
The Crown case is that Mr Hawi was a person who was wielding a bollard and striking the deceased. The Crown case is that the accused Menzies did likewise. The Crown Prosecutor acknowledged that the description given by Ms Brown in her statement and her committal evidence was also consistent, perhaps, with Mr Menzies. Mr Menzies is 6'3" tall and has a tattoo on his right arm which goes down to his wrist and on to his hand. However, he was wearing a predominantly dark t-shirt and light coloured trousers.
As I understood the submission, the Crown may go to the jury in respect of Ms Brown's evidence on the basis that he was one of the two men who it alleges struck the deceased with a bollard, but submit that the description she gave in her statement, and her committal evidence, was one man, and that the person she identified from the television as being Mr Hawi was the other person.
The Crown Prosecutor submitted that there was no unfair prejudice in that there was no danger that the jury might misuse the evidence. She referred to the evidence given by Ms Brown on the voir dire, in chief, that the reasons for which she had withheld her identification of Mr Hawi was that she did not want to be involved in identifying anyone in a line-up; she was afraid of repercussions; and her husband told her that it would be foolish to say anything. The references to bikie wars and the like were all things that she agreed to in response to leading questions put to her by Mr Dunn. So, it was submitted, such material would not be before the jury if Mr Dunn does not again put them to her. That, of course, depends upon the witness not volunteering such matters, they having been brought to the forefront of her thinking by Mr Dunn's questioning.
Consideration
The standout features of the description given by Ms Brown of the one man she said that she saw wielding a bollard in the direction of the deceased are the height of 6'5" (inconsistent with Mr Hawi), dark trousers (inconsistent with Mr Hawi) and a pale yellow shirt (more consistent with the white shirt Mr Hawi wore than the shirts worn by others of a similar height). "Dark short shaved hair" is more consistent with Mr Menzies than Mr Hawi. Tattoos on the right arm going down to the wrist, are also more consistent with Mr Menzies than Mr Hawi.
The Crown accepts that it is a possibility, I would think a high likelihood, that the description will be accepted as being consistent with Mr Menzies far more so than being consistent with Mr Hawi. The height is the key feature. A person who is 6'3" (as Mr Menzies is) is a person who stands out. A person who is 5'10" (as Mr Hawi is) is not nearly so notable as to their height.
The alternative proposition the Crown anticipated putting to the jury, that is that Ms Brown had given a description of one of the two persons it contends struck the deceased with a bollard, but then identified the other person from having seen his face on the television, is, in my respectful view, of dubious validity.
If Ms Brown has subliminally transposed an image of somebody else that she saw during the incident upon the person that she described, it does not necessarily follow that this person was the second person that the Crown contends struck the deceased with a bollard. It could equally be some other person that she saw in the area. Ms Brown said that she saw 8 to 10 men involved in the general fighting. There is no dispute that Mr Hawi was present. I cannot imagine how the jury could, legitimately, place any weight at all on a submission that she was wrong in saying that Mr Hawi was the person she described as striking the deceased with a bollard but nevertheless conclude that he was the second person, as opposed to one of the other people involved in the incident.
This is not a case of second guessing the jury, trying to anticipate the weight that it might assign to the evidence. I accept that the descriptions given by witnesses of the men involved in events which happened very quickly and unexpectedly, in very chaotic circumstances, vary widely as to their reliability. However, if the jury is to proceed upon a logical analysis of the evidence, as it must be assumed that it will, I am unable to see how it could ignore the striking aspects of the description given by Ms Brown of the one man that she saw wielding a bollard and accept her claim that the man is Mr Hawi. In my view, the evidence has minimal probative value, particularly when it is considered that there is no dispute that Mr Hawi was in the general vicinity of the events which occurred. If the jury were to consider that Ms Brown had provided a description of one man who was wielding a bollard in an assault upon the deceased, and regard the person who she identified as Mr Hawi as being a another person who the Crown alleges was similarly involved in that assault, that would be to give the evidence a weight that it simply does not deserve. That is a misuse of the evidence that amounts to an unfair prejudice that, in my view, outweighs its probative value.
As to the submissions concerning prejudice that were made by Mr Dunn, in my view there are ways of cross-examining the witness that could serve to reduce, or eliminate, the reliability with which the jury would regard the evidence without introducing all of the prejudicial elements that he identified. I am not persuaded that there is unfair prejudice for the reasons he advanced. I am persuaded that there is a danger of unfair prejudice for the reasons I have otherwise identified.
The proposed evidence by Mr Brown that the person she described as striking the deceased with a bollard was the accused Mahmoud Hawi is inadmissible.
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