R v Hawi (No 14)

[2011] NSWSC 1660

Supreme Court

New South Wales

Medium Neutral Citation:	R v Hawi & ors (No 14) [2011] NSWSC 1660
Hearing dates:	1, 3 August 2011
Decision date:	04 August 2011
Jurisdiction:	Common Law - Criminal
Before:	R A Hulme J
Decision:	Evidence not admissible
Catchwords:	CRIMINAL LAW - evidence - credibility - prior inconsistent statements - admissibility of notes taken by a police officer of information from an accomplice prosecution witness - notes not evidence of a prior inconsistent statement - hearsay - admissibility - not relevant to assessing credibility of the witness
Legislation Cited:	Evidence Act 1995
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: This judgment concerns the admissibility of a police officer's informal notes written by him on the first occasion that an accomplice prosecution witness provided a version of events to police.

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, SP, who was responsible for some of the violent conduct in both locations. He obtained a reduced sentence after pleading guilty to affray and riot partly upon his undertaking to give evidence for the prosecution. A charge of murder was withdrawn. Both the reliability of his evidence and his general credibility are in issue.

1. The first occasion that SP spoke to police and provided a version of events was on 10 July 2009 when he spoke with Detective Sergeant James McLoughlin. That came about through the following process. SP had been arrested on 8 July 2009 and charged with affray. He was in custody at the Sydney Police Centre. Detective McLoughlin asked SP whether he would be prepared to be interviewed under caution. SP declined. Detective McLoughlin was instructed by Detective Inspector French to canvass with SP whether he would be willing to participate in an interview under an inducement that anything he said would not be used against him (except in respect of the falsity of anything he said). SP indicated that he was agreeable to this course. Detective McLoughlin, again on the instructions of Detective French, sought to obtain general details of the information that SP could provide so that a decision could be made as to whether police would proceed with an induced interview.

1. SP was taken to an interview room where Detective McLoughlin asked him whether he was prepared to assist police with the investigation. He told SP that there was a possibility that in doing so he could receive a reduced sentence. SP's response was that he was prepared to assist, but he was concerned about the safety of his family, and for his own situation in relation to his prosecution. Detective McLoughlin told SP that he was not in a position to negotiate terms of assistance, but in order for more senior police to enter into such negotiations, he would need to obtain an indication of the evidence which SP could offer to the investigation.

1. According to Detective McLoughlin, SP then outlined the evidence he could provide. SP told him what he claimed had happened, and what he had seen, before, during and after the events in the Qantas terminal. As he did so, Detective McLoughlin made notes on some A4 sheets of paper.

1. I have drawn the foregoing from the evidence of Detective McLoughlin (T2999 - 3000).

1. It is unnecessary for present purposes to relate the further course of the police dealings with SP, except to say that he subsequently engaged in three induced interviews of some length and then in what has been referred to as a "walk through" interview at the Qantas terminal. He was cross-examined extensively upon the contents of those interviews. Detective McLoughlin's notes of the version provided by SP on 10 July 2009 were also used in the course of the cross-examination, but to a significantly lesser extent.

1. MFI 64 comprises six pages of Detective McLoughlin's handwritten notes made on 10 July 2009. The cross-examination of SP proceeded as if counsel understood that Detective McLoughlin wrote six pages of notes while SP was speaking. Detective McLoughlin's evidence, initially, was to the same effect (T3022.40). However, during the cross-examination by Mr Driels, counsel for the accused Potrus, he came to agree with what appears to be apparent from the nature of the notes themselves. That is, that he jotted some notes during the course of the conversation and then rewrote them. This was done, partly to make the recording more legible and to put them in correct English (T3024) and, it seems to me, to amplify the recording of what he recalled SP to have told him.

1. When SP was cross-examined about what he had said to Detective McLoughlin, he was first shown the notes by Mr Stratton, senior counsel for the accused Menzies, and asked to read them (T2769). Mr Stratton then took SP to some, but by no means all, of what the notes record that he had said. Counsel for other accused subsequently cross-examined SP on the notes, particularly Mr Trevallion, counsel for the accused Abounader, Mr Young, senior counsel for the accused Eken, and Mr Driels.

1. On 1 August 2011, Mr Stratton tendered the notes during his subsequent cross-examination of Detective McLoughlin (T3017). The Crown Prosecutor indicated that she wished to consider the Crown's position on the subject. The question of admissibility was deferred.

1. At the conclusion of proceedings on that day, there was a brief discussion on the topic. I indicated that I understood that the conversation between SP and Detective McLoughlin was made relevant in the course of the cross-examination of SP in two ways. One was that it contained prior inconsistent statements and was thus relevant to his credibility. Upon reflection, it is more correct to say that the cross-examination upon the notes that was relevant to SP's credibility was directed to things that were included in his evidence in the trial but that he had not told Detective McLoughlin (e.g. T2771.10; T2851.44 - 2852.4). The other way in which the conversation appeared relevant was that it contained material favourable to at least one of the accused, Mr Eken, from which SP's memory could be prompted to recall (see T2880). I queried how the notes were otherwise relevant, it being apparent that SP had not been cross-examined upon the entirety of them.

1. Mr Stratton indicated that the notes were relevant in that they contradicted SP's assertion that the version he gave to Detective McLoughlin was "just a rough outline" (T3034.39). His submission was that the notes indicated that "it's actually quite a detailed account and also it puts into context matters which we say relate to the accused Menzies" (T3034.40). He cited, as an example of the latter, the note:

"Touza (Christian) [accepted to be a reference to the accused Menzies] punched him down, he fell down and that one got finished off by someone else."

1. Mr Stratton submitted that this could only be understood as referring to the deceased when seen in the context of the notes in their entirety. However, as Mr Stratton then conceded, it was clear from the evidence that SP gave that the "he" who "fell down and ... got finished off by someone else" was a reference to the deceased (see, for example, T2770.40 - T2771.22; T2851.37, bearing in mind that it was SP's evidence that the accused Abounader, in effect, stabbed the deceased when he was lying on the ground).

1. Also in the course of the discussion on 1 August 2011, Mr Trevallion indicated that he supported the admission of the notes as an exhibit, submitting:

"[M]y client's name is mentioned at least twice in those notes, but when it comes to mentioning a person who finished off Anthony Zervas it refers to ... "someone" and doesn't use the name. I cross-examined [SP] in respect to that, but I haven't got into evidence either through him or through the last witness [Sgt McLoughlin] that [SP] did otherwise mention my client's name, that would be relevant. If they are not to be tendered I would seek to have Mr McLoughlin recalled or to have that evidence adduced another way." (T3035.10)

1. The problem with that submission is that Mr Trevallion's cross-examination of SP involved him asserting, and SP accepting (having read the notes during Mr Stratton's cross-examination the previous day but not having them in front of him at the time of Mr Trevallion's cross-examination), that there was no mention in the notes at all of Mr Abounader (T2851).

1. The matter was revisited on 3 August 2011 (T3203 - 3205). The Crown was in a position to indicate that it objected to the notes being admitted. The Crown Prosecutor's submissions were, in brief, that the notes were not SP's document; he had not adopted them apart from those portions to which his attention had been specifically directed; those statements which he had adopted were already in evidence, in the oral testimony recorded in the transcript of the trial; and that it would be unfair for SP's credibility to be impugned upon the basis of the unadopted portions of the notes.

1. In relation to those submissions, the Crown Prosecutor referred to SP's evidence immediately after the notes were first shown to him and he was allowed the opportunity to read them:

"Q. The first pages of that which are all in McLoughlin's handwriting on blank paper, do they accurately record what you said to Sergeant McLoughlin?

A. Yes, like I can't remember all of that but I remember he was writing things down." (T2769.49)

1. It was submitted that in the light of this, there was no way of knowing what parts of the notes SP actually adopted, aside from those portions which were specifically put to him.

1. Mr Stratton's submissions on 3 August 2011 were these (T3203 - 3204):

• The passage of evidence relied upon by the Crown (quoted above) made the evidence admissible under s 43 of the Evidence Act 1995. There was a prior statement which the witness had not admitted making and consequently Mr Stratton was entitled to prove it.
• SP was given the opportunity to adopt the notes as comprising his prior statements, but he said that he could not remember "all of it" and so he had not adopted them.
• The significance of the notes was that they provide a context to the particular passages upon which Mr Stratton relied.
• The only inconsistent statement recorded in the notes was "the boys were downstairs". Mr Stratton then said that "the main inconsistency that I rely on is 'Touza punched him down, he fell down and someone else finished him off'. That's in effect the prior inconsistent statement that I'm seeking to prove".
• The strength of the "proof of the inconsistency is [enhanced] ... by being in the context of a complete account which he gives of the incident" (T3204.13).

1. Upon inquiry as to whether it had been put to SP that the version given to Detective McLoughlin was a "complete account", Mr Stratton referred to the following evidence:

"Q. Did you tell Sergeant McLoughlin the truth?

A. Yes.

Q. Did you leave anything important out?

A. I left like a few things out, yes.

Q. What did you leave out?

A. Like just more details of how things were." (T2770)

1. Finally, Mr Stratton submitted that in the event that I was to rule against him on the s 43 point, the evidence was "a representation made by an available witness so it's admissible under section 66" (T3204.40).

1. First, to deal with the submission that the notes of the version provided to Detective McLoughlin are admissible pursuant to s 43. That provision is concerned with prior inconsistent statements of a witness. Subsection 2 provides:

"(2) If, in cross-examination, a witness does not admit that he or she has made a prior inconsistent statement , the cross-examiner is not to adduce evidence of the statement otherwise than from the witness unless, in the cross-examination, the cross-examiner:

(a) informed the witness of enough of the circumstances of the making of the statement to enable the witness to identify the statement, and

(b) drew the witness's attention to so much of the statement as is inconsistent with the witness's evidence." (Emphasis added)

1. The prior inconsistent statements asserted in Mr Stratton's submissions were admitted by SP. Accordingly, s 43(2) does not warrant admission of the evidence.

1. The tender of the notes is sought, clearly, to impugn the credibility of SP. Evidence relevant to the credibility of a witness is admissible if it "could substantially affect the assessment of the credibility of the witness": s 103(1). In the context of all of the attack upon the credibility of SP, the present issue is very minor. The contention that the notes contradict SP's assertion that he gave Detective McLoughlin "just a rough outline" is not contradicted, but in fact supported, by the notes. By comparison with the hours and hours of subsequent interviews in which SP was asked thousands of questions, the notes indicate that "a rough outline" is an apt description. It is pertinent to note that it was Mr Stratton who described the version given to Detective McLoughlin as an "outline":

"Q. And at that stage, although you weren't prepared to go in front of a camera, if I could put it that way, you gave police an outline of what evidence you could give?

A. Yes" (T2769.24)

1. It is apparent that the focus of that question was not upon the extent to which the version given to Detective McLoughlin represented "an outline". There was no other questioning by Mr Stratton that was concerned with the extent to which it was "an outline". Moreover, it was not suggested to him, and he did not assert himself, that the version was "a rough outline".

1. Mr Driels included reference in his questions to the version being "a brief outline" (T2892). However, as with Mr Stratton's cross-examination, there was no questioning concerned with the extent to which it was an outline.

1. Accordingly, I am not satisfied that the tender of the notes would serve to contradict an assertion by SP, that any counsel disputed, that the version provided by SP on 10 July 2009 was other than an "outline".

1. SP readily agreed that he left out details in what he told Detective McLoughlin. His responses in cross-examination included: "I left like a few things out" (T2770.18). When asked what he had left out he said, "[l]ike just more details of how things were ... [d]etails of how the events went down, who was involved in a lot of the events" (T2770.21 - 25). By comparison with what he subsequently told police, and has said in evidence, the notes bear that out. SP's ready agreement that he did not tell Detective McLoughlin certain matters concerning Mr Abounader (T2851 - 2852) also bears that out.

1. In my view, there is no occasion for contradiction of the evidence of SP by showing that the notes represent more than "an outline" or a "brief outline", let alone a "rough outline". It simply was not an issue that was the subject of cross-examination.

1. If it was necessary for the jury to understand the portions of the notes that had been put to SP in cross-examination, in the context of the notes in their entirety, it was perfectly open to counsel to pursue such a course in that cross-examination. I can only assume that because that was not done, it was not, at least at that time, felt necessary. Nothing has been put to me that persuades me that there is anything that was referred to in the course of the cross-examination that cannot be understood by the jury without them having the notes before them.

1. It was clear that SP's evidence was that there were matters that he had subsequently told police, and subsequently said in evidence, that were not part of what he had told Detective McLoughlin. To now assert, by reference to the notes, that the account SP gave was more than an "outline", and that for this reason there should be an adverse view taken of his credibility, without SP having had the opportunity to comment on the proposition, has an unfairness about it.

1. As was previously indicated, Mr Stratton's alternative submission was that the notes were admissible pursuant to s 66 of the Evidence Act which, relevantly, is in these terms:

"66 Exception: criminal proceedings if maker available

(1) This section applies in a criminal proceeding if a person who made a previous representation is available to give evidence about an asserted fact.

(2) If that person has been or is to be called to give evidence, the hearsay rule does not apply to evidence of the representation that is given by:

(a) that person, or

(b) a person who saw, heard or otherwise perceived the representation being made,

if, when the representation was made, the occurrence of the asserted fact was fresh in the memory of the person who made the representation."

1. It may well be that the evidence is admissible by application of this provision. However, an antecedent question is relevance: Evidence Act ss 55 & 56. The only matter to which the evidence could be relevant is the credibility of SP. For the various reasons I have given above, I am not satisfied that it could substantially affect the assessment of the credibility of SP.

1. My conclusion, announced on 4 August 2011, was that the notes made by Detective McLoughlin of what SP told him on 10 July 2011 are not admissible.

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Decision last updated: 10 February 2012