R v Hawi (No 13)

[2011] NSWSC 1659

Supreme Court

New South Wales

Medium Neutral Citation:	R v Hawi & ors (No 13) [2011] NSWSC 1659
Hearing dates:	18 July 2011
Decision date:	28 July 2011
Jurisdiction:	Common Law - Criminal
Before:	R A Hulme J
Decision:	Evidence admitted in part
Catchwords:	CRIMINAL LAW - evidence - credibility - prior inconsistent statements - contradicting denials by witness by proof of prior representations recorded in business records - CRIMINAL LAW - evidence - relevance - whether prior representations relevant to facts in issue
Legislation Cited:	Evidence Act 1995
Cases Cited:	Browne & Dunn (1893) 6 R 67
Category:	Procedural and other rulings
Parties:	Regina Mahmoud Hawi Christian Adam Menzies Farres Abounader Ishmail Eken Usama Potrus Zoran Kisacanin David Padovan
Representation:	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: 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

Judgment

1. HIS HONOUR: On 19 July 2011 I announced my decision to admit a portion of a document marked for identification 50 and to not admit certain pages of a document marked for identification 53. These are my reasons.

1. The relevant factual background is that the trial is concerned with two episodes of violent activity that occurred at the Qantas domestic terminal at Sydney airport on 22 March 2009. The Crown contends that unlawful violence, constituting an affray, occurred in the vicinity of Gate 5 and that further unlawful violence, constituting a riot, occurred minutes later in the departure hall. The latter culminated in the death of the deceased.

1. The Crown has called a witness, AL, who was responsible for some of the violent conduct. He obtained a reduced sentence after pleading guilty to affray and riot upon his undertaking to give evidence for the prosecution. His credibility is in issue.

1. The documents in question were shown to AL by Mr Stratton SC who appears for the accused Menzies. Following certain denials made by AL, Mr Stratton tendered the documents. The Crown objected to their admission into evidence.

1. The document which is MFI 50 is a single page of notes from the files of the Corrections Health Service of Corrective Services NSW. They are notes of an interview of AL on 29 November 2001. I was satisfied that they are a business record and that they contain a record of a previous representation made by AL: Evidence Act 1995, s 69(1). The note that is of interest to Mr Stratton is:

Drug Hx

Speed = 1 gm day = Pure - Injection

Heroin = 1/4 per day = Injection

THC = $50 per day = Cones

Alcohol = Social drinks

1. AL was cross-examined about his prior drug use. He admitted to having used speed and cannabis but he was adamant that he had never touched heroin (T2201; T2224). He was specifically asked about whether he had made the prior representation recorded in MFI 50 and maintained, "I used speed, yes, but not heroin" .

1. I had previously indicated that I would admit another document that includes a prior representation by AL that he had used heroin. MFI 50 is similarly admissible. It contains a record of a prior inconsistent statement that renders the claim by AL in his evidence that he had never touched heroin capable of being regarded by the jury as a lie. I am satisfied that if the jury concluded that it was a lie, it could substantially affect the assessment of his credibility: Evidence Act 1995, s 103(1). That is because the jury could reason that if a person had ever used heroin in their life, it is something they would never forget for the rest of their life. There is nothing equivocal about the denial by AL. He most stridently maintained that he had never touched that drug. The subject matter of the prior representation is, relatively speaking, unimportant. It is the fact that AL was prepared to make such an adamant denial, in the face of what he must obviously have said to the contrary, that is the point.

1. For these reasons I held that the document which is MFI 50 was admissible. However I limited what was to be admitted to the relevant portion, and so much as would place it in context. The balance of the document contains material that was not sought to be placed before the jury and/or contains commentary by the author that does not amount to a prior representation by AL.

1. The other document, MFI 53, was more contentious. There are about 25 pages in the document and they are from the records of Nepean Hospital. They relate to an admission of AL as an involuntary patient following an arrest and court appearance on 28 March 2001. Mr Stratton cross-examined AL in respect of four pages in the document which were tabbed and numbered 1 to 4. It was those four pages which were tendered.

1. The first four pages of the document are headed "Discharge Summary". Tab 1 is the second of the four pages. Of particular relevance, according to Mr Stratton's submission, is something which appears under a heading, "Major presenting symptoms, history of present illness and mental state on admission:

Claims he was hit on the head by an iron bar 5 weeks ago for which he required stitches. No loss of consciousness. Since head injury, complaining of poor memory, difficulty concentrating, see things "like people moving" and hearing voice telling him "to go away". Also complaining of feeling irritable, short tempered and being easily angered. Wanting to harm and/or kill people. " (Emphasis added)

1. Tab 2 is a page within a document that has the title "Emergency Registration". It records details of the arrival of AL at the hospital and the circumstances (e.g. "Pt BIB Police under a section 33"). It records that he arrived at the hospital on 28 March 2001 at 5.20pm; was assessed by a triage nurse at that time; and was then seen by somebody else, seemingly a doctor, at 6.00pm. It is a page of the notes recorded during the latter assessment that is tab 2. The notes are, in part, the history obtained from AL. They include:

"Claims . Hit on head by iron bar 5 weeks ago

. required stitches. No LOC

• Since then
• loss of memory
• difficulty concentrating
• sees things - "like people moving"
• hears voices - won't say what
• Also
• feels angry / short tempered
• wants to harm +/- kill people
• no suicidal ideation
• ?left/lost job about this time - can't remember" (Emphasis added)

1. Tab 4, numbered in the order in which Mr Stratton cross-examined, but, third in the order in which they appear in the entire document, is dated 28 March 2001. It includes:

"1145 hours (sic - 2345 hrs?) nursing: Sam is a 42 year old male brought into hospital on a Section 33 by police with ? Drug induced psychosis with anti social traits ... It was reported that he was drowsy + initially unco-operative & very angry, that he had homicidal ideation towards his ex-wife's family . It was also reported that he had persecutory delusions, auditory & visual halucinations (sic) + risk assessment towards others = medium ... Police to be informed prior to pt being discharged. Settled in bed." (Emphasis added)

1. Tab 3 comprises notes dated and timed 29 March 2001 at 1815 hours. They are headed "Sanbrook/Tsovolos Review". It can be deduced from material elsewhere in the document that this is a reference to Dr Sanbrook, psychiatrist, and Dr Tsovolos, registrar. Of particular relevance is the following:

"Hearing a voice telling him "to get this person + get him now". Doesn't know where the voice comes from - it comes from his shoulder. Male voice, telling him be a man go and do it, go and get this business, go and hurt this person, go and kill him. Voice has not told him which person to kill. Voice comes from outside his head. There since the hit on the head". (Emphasis added)

1. The portions I have italicised in the above extracts were said to be of particular significance.

1. The documents at tab 1 and tab 4 may be immediately rejected. They do not purport to set out anything like a quotation of what AL had said. They are summaries of what others have recorded elsewhere in the records. They are not admissible. The documents at tabs 2 and 3 remain to be considered.

1. The relevant passage of the cross-examination of AL was as follows:

"Q. Did you tell the doctor that you felt irritable, short-tempered and easily angered?

A. Easily what, sorry?

Q. Easily angered. You became angered easily?

A. Yes.

Q. Did you tell the doctor that you had thoughts of wanting to harm and/or kill people?

A. No, myself.

STRATTON: Could that set of documents be marked for identification and then be returned to me?

MFI #50 above bundle of documents SHOWN TO WITNESS [AL]

Q. I've turned that same document to another page. I'm going to ask that that be handed to you. Could I ask you to read the section that's been highlighted, Mr [AL] (MFI 50 shown to witness)?

A. Yes.

Q. Have you read that?

A. Yes.

Q. Does that assist your memory as to whether or not you told a doctor that you wanted to harm and/or kill people?

CROWN PROSECUTOR: I object to this.

WITNESS: No.

CROWN PROSECUTOR: Well, the witness has answered.

HIS HONOUR: He's answered. It doesn't help him to recollect.

STRATTON: Might I have the MFI back and I will turn it to another page?

HIS HONOUR: That whole bundle will be regarded as MFI 50. Can you just indicate what page within the bundle was just shown to the witness?

STRATTON: It's marked with a tab. I will put a "2" on it, your Honour.

Q. Could I take you to another page?

HIS HONOUR: Do you want to put a number on that one, Mr Stratton?

STRATTON: Yes, I will put the number "3" on it.

Q. Could you read that to yourself, Mr [AL] (MFI 50 shown to witness)?

A. Yes.

HIS HONOUR: All of it or just the highlighted part?

STRATTON: Perhaps just the highlighted part, your Honour.

(Witness complied.)

STRATTON: Could that MFI be returned to me for a moment? (Handed).

Q. Having read that document, do you remember telling medical staff that you had been hearing a voice telling you to get this person or "get him now". You do not know where the voice comes from, it comes from his shoulder, a male voice telling you "be a man and go and do it, go and get this business, go and hurt this person, go and kill him." The voice didn't tell you which person to kill. The voice comes from outside your head. Do you remember saying that to a doctor?

A. I don't remember why it's saying there going to kill people and everything because all I do is try to kill myself.

Q. Did you tell another member of the medical staff that you were thinking about killing your ex-wife's family?

A. No, sir.

Q. Would you have a look at this page which is marked with a "4". Could you just read the paragraph that contains some highlighting in it (shown to witness)?

A. (Witness complied).

Q. Have you read that?

A. Yes.

Q. Does that assist your memory as to whether or not you told medical staff about whether you had thoughts about killing your ex-wife's family?

A. No." (T2204-2206)(Emphasis added)

1. Mr Stratton contended that the documents were admissible on three bases. The first was that they were relevant to the determination of a disputed question of fact, that being whether or not AL was more involved in the violence than he was prepared to admit. AL's evidence is that he threw a single punch in the course of the Gate 5 affray and he threw a single punch in the subsequent departure hall riot. In each case, his punch was a reaction to being struck by someone else. The case for Mr Menzies is that AL had downplayed his role and shifted the blame to others.

1. The second basis is that there is an issue as to whether or not AL was involved in the fatal assault upon the deceased. The Crown contends that three of the accused were so involved, including the accused Menzies. Some eyewitnesses have said that there were a greater number of assailants. AL has denied that he had any direct involvement in causing the death.

1. I understand that Mr Stratton will refer to certain eyewitness descriptions of the persons involved in the assault upon the deceased in support of the proposition that there is a reasonable possibility that AL was involved. The Crown has argued, in effect, that on no view of the evidence could it be said that there was such a possibility. That is not an issue that I believe I need to resolve. Even if Mr Stratton's assertion is tenuous, there is nothing to prevent him making the submission. He has complied sufficiently with the rule in Browne v Dunn (1893) 6 R 67.

1. Mr Stratton's contention is that evidence that AL heard voices which gave rise to thoughts of harming and/or killing people was relevant to the jury's determination of these two disputed questions of fact. AL denied that he had such thoughts. Accordingly, so it was submitted, evidence of AL's prior representations to that effect should be admitted.

1. It was acknowledged that there is no evidence of AL experiencing such auditory hallucinations subsequent to 2001. It was submitted, however, that an absence of evidence does not mean that AL did not have such experiences. Mr Stratton pointed to the difficulty for the defence in obtaining evidence. The latest report he had in relation to AL was that of a psychologist which was prepared in 2005. It records various admissions of AL to psychiatric facilities prior to that year. There is no reliable source available to the defence from which it could be ascertained whether there had been subsequent admissions. AL, it was contended, was an unreliable historian on the subject.

1. Assuming it to be a fact that AL was hearing voices in March 2001 and that they were telling him to harm or kill people, I fail to see how that can have any relevance to the two factual issues to which Mr Stratton has referred. There is no evidence that the experience AL reported in March 2001 recurred, as opposed to it being an isolated instance. If the experience was related to his abuse of amphetamines at the time (there is reference in an "Interim Discharge Summary" to a diagnosis of drug induced psychosis), it is to be noted that the evidence before the jury, albeit only from AL himself, is that he last used that drug in 2004 or 2005.

1. To suggest that because AL had such an experience in March 2001, he might possibly have had the same experience eight years later, specifically on 22 March 2009 would, in my view, be an invitation to the jury to speculate in the absence of evidence.

1. For these reasons I was of the view that the documents at tabs 2 and 3 of MFI 50 were not relevant to the assessment of the two facts in issue that were identified: Evidence Act , ss 55 & 56.

1. It was not part of my determination, but I note that there was no cross-examination of AL as to whether he was hearing voices which commanded him to harm and/or kill people in March 2009, or indeed at any time subsequent to March 2001.

1. The third basis upon which it was contended that the documents were admissible was that proof of the prior representations made by AL to the staff at the Nepean Hospital could substantially affect the assessment of his credibility. It can be seen from the extract from the cross-examination set out earlier that he denied having made the representations and denied the subject matter of them. The effect of his evidence was that he had not heard voices telling him to harm and/or kill other people. The submission was that the documents could prove the making of a prior inconsistent statement.

1. The subject matter of these representations is, however, in a different category to the prior inconsistent representations concerning heroin use. As I indicated in relation to that topic, past heroin use is capable of being regarded by a jury as being something that AL would never forget and so a flat denial in his evidence in the trial could be regarded as substantially affecting his credibility. The representations now being considered were made 10 years ago at a time when AL was regarded as being mentally ill. The experience of a person in such a state who is hearing voices is not one that would carry the same expectation of recall as to what the voices were saying, particularly many years later.

1. Whether the evidence in question could substantially affect the assessment of AL's credibility must also be considered in the light of other evidence that is before the jury. It includes the following:

• AL has had a number of admissions to psychiatric hospitals:

- initially he said "about two" (T2199);

- he agreed he had been admitted to Mount Druitt Hospital after drinking petrol in 2001 (T2199);

- he agreed he had been admitted to Pialla at Nepean Hospital (T2199);

- he agreed he had spent three weeks in the psychiatric ward of Blacktown Hospital (T2200);

- he agreed that he had been admitted to Wisteria House at Cumberland Hospital from 4 to 9 March 1998 (T2200);

- he also agreed that he had been admitted to Cumberland Hospital on 16 July 1999 (T2201);

- he could not recall a third admission to Cumberland Hospital on 25 October 1999 (T2201); and

- he agreed he was in Nepean Hospital from 28 March to 3 April 2001 (T2203).

• AL agreed that he had experienced problems with his memory after he was hit on the head with an iron bar in 2001 (T2202).
• He agreed that he had told a doctor at Nepean Hospital in 2001 that since the head injury he had poor memory and difficulty concentrating; he was seeing things, like people moving; he could hear voices when there was no-one there; he could hear voices telling him to go away; and he said that he felt irritable, short-tempered and easily angered (T2203-2204).
• He agreed that he had said in 2001 that he was "just hearing voices ... I was just trying to harm myself" (T2206).
• He had once seen a ghost, in Samoa, but denied saying that he had seen "ghosts" (T2206). (Exhibit 19 was subsequently admitted which contains the prior representation as having seen ghosts).

1. If AL's denial was of something that he should have been able to recall, notwithstanding that it occurred during some type of psychotic mental disorder and notwithstanding that a decade had elapsed, then it may have been something that could substantially affect the assessment of his credibility. Regard must be had to the word, "substantially". In my view, it is questionable whether AL's denial could affect the assessment of his credibility at all and, in the light of all of the other material relevant to credibility, and particularly that which I have set out above, I concluded that the documents were not admissible on the third of the bases relied upon.

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Decision last updated: 14 February 2012